Opinion
B229594 Los Angeles County Super. Ct. No. PC046540
09-14-2011
GIRARDI & KEESE, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.
Law Offices of Martin N. Buchanan, Martin N. Buchanan; Girardi & Keese, David R. Lira for Plaintiff and Appellant. Carmen A. Trutanich, City Attorney, Amy Jo Field, Deputy City Attorney, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara Scheper, Judge. Reversed.
Law Offices of Martin N. Buchanan, Martin N. Buchanan; Girardi & Keese, David R. Lira for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Amy Jo Field, Deputy City Attorney, for Defendant and Respondent.
Girardi & Keese appeals from an order under Code of Civil Procedure section 1038 against it and in favor of respondent City of Los Angeles (the City). We reverse.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Facts
In 2009, an individual named Myra Calove went hiking in the City's Chatsworth Park. There is a train tunnel adjacent to the park, and Calove walked into it, believing that it was abandoned. It was not, and she was killed by a train. Her husband, mother, and sisters, who were present at the time of the accident, sued the City and others. As to the City, the complaint brought a cause of action for negligent infliction of emotional distress and a cause of action under Government Code section 830, for dangerous condition of public property.
The complaint alleged, inter alia, that there were no fences between the Park and the tunnel, and no warning signs, that to the City's knowledge, members of the public hiked near and inside the tunnel, that it was reasonably foreseeable that park users would assume that the tunnel was inactive.
Girardi & Keese substituted into the case for plaintiffs after the complaint was filed.
The City moved for summary judgment based on the undisputed fact that the tunnel and train tracks are not on City property but are instead on property which is partly owned by Union Pacific Railroad Company and partly owned by the Los Angeles County Metropolitan Authority.
It was also undisputed that the tunnel and tracks are adjacent to the northwest border of the Park, that the City posted warning signs about fire hazards and mountain lions, but not about the tunnel, that there is heavy pedestrian activity in and around the tracks, and that Calove and the other plaintiffs entered the tunnel after they saw a family with young children leaving the tunnel. Further, plaintiffs proffered evidence that they had only been walking in the park for about 15 minutes before they came to the tunnel, that there is a "no trespassing" sign near the tunnel, which plaintiffs did not see and which is obscured by graffiti, and that the tunnel appeared to them to be abandoned because it was easily accessible and covered in graffiti and because they saw other pedestrians in and around the tunnel.
The court granted the City's motion for summary judgment, finding that no feature of the Park or its location in relation to the train track necessitated or enticed Park users to go near the train tracks or through the tunnel. The court then entered judgment in the City's favor, a ruling which has not been appealed.
With its summary judgment motion, the City also moved for fees and costs under section 1038. It argued that plaintiffs lacked reasonable cause in that they had proof, from the City and through discovery, that the City did not own the accident location. With the motion, the City produced its response to plaintiffs' Tort Claims Act filings. In that response, the City wrote that the claim was denied because "The Metropolitan Transit Authority is a separate public entity and not part of the City of Los Angeles."
The court granted the fees motion, finding that "plaintiffs did not maintain this action in good faith or with reasonable cause after receiving uncontroverted evidence that the City did not own or control the property where the accident occurred and that no legal authority reasonably supported extending liability to the City under the facts of the case," and ordered plaintiff's counsel to pay $6,000.
Discussion
Section 1038 provides that "(a) In any civil proceeding under the California Tort Claims Act . . . the court, upon motion of the defendant or cross-defendant, shall, at the time of the granting of any summary judgment . . . determine whether or not the plaintiff . . . brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint . . . . If the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party. . . ."
"[D]efendants may recover defense costs under section 1038 if the trial court finds the plaintiffs lacked either reasonable cause or good faith in filing or maintaining the lawsuit." (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 853.) The court's decision on reasonable cause is reviewed de novo, and the decision on good faith is reviewed for substantial evidence. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860.)
Reasonable cause
"Reasonable cause" in section 1038 "is synonymous with the term 'probable cause' in malicious prosecution law." (Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 183.) "[P]robable cause to bring an action does not depend upon it being meritorious, as such, but upon it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 824.)
Here, we cannot say that no reasonable attorney would have thought plaintiffs' claim tenable. It was undisputed that the City did not own the land on which Calove was injured the complaint alleges as much, in a cause of action against Union Pacific. However, a public entity may be liable for failure to protect against a foreseeable risk of injury on adjacent property.
Under Government Code section 830, "'Dangerous condition' means a condition of property that creates a substantial . . . risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable." A host of cases holds that although "'[a] public entity may be liable only for dangerous conditions of its own property . . . its own property may be considered dangerous if it creates a substantial risk of injury to . . . persons on adjacent property; and its own 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., reprinted at 32 West's Ann. Gov. Code (1995 ed.) foll. § 830, p. 299.)" (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148.)
The City argues that the statute and the case law "make it abundantly clear" that this principle applies "only in the very narrow circumstance where there is some feature or condition of the public property that encourages the foreseeable user of that property to expose themselves to a substantial risk of injury on the adjacent property." The City thus argues that it cannot be liable unless, for instance, Park users were led to the train tracks by a park improvement such as a restroom or drinking fountain.
As appellant points out, none of the cases on this issue state the rule the City suggests. Instead, the City finds this rule in the facts of those cases.
First, the absence of any case which states the rule the City relies on suggests that plaintiffs' theory of the case was not so completely lacking in merit than any reasonable attorney would find the theory untenable.
Further, the cases do not necessarily support the City's position, and can also be read to support the complaint in this action.
For example, in Branzel v. City of Concord (1966) 247 Cal.App.2d 68, a father and son were flying a model airplane in that city's designated model airplane park. The father chased the plane and was electrocuted when the plane's guide wire came in contact with uninsulated electrical lines across the street from the park. (Id. at pp. 69-70.) In Bonanno, supra, the Supreme Court recounted, with approval, the holding of the case: "The defendant city contended that, as a matter of law, there was no dangerous or defective condition of its property (the park). The appellate court rejected that claim, holding the jury could find it foreseeable that users of the model airplane field would sometimes lose control of their planes and, in trying to recover them, would be exposed to the danger of the electrical lines. 'While the City did not maintain or control the power lines, it did maintain the flying field in a location so close to them that in the light of the known use of the field the involvement of the field with the lines could be reasonably anticipated. It seems to us . . . that the condition of the field can be considered dangerous because the condition of the adjacent power lines exposed those using the field to a substantial risk of injury.' [Citations.]" (Bonanno v. Central Contra Costa Transit Authority, supra, 30 Cal.4th at p. 150.)
The City argues that Branzel supports its position, because the city in that case encouraged use of the park for flying model airplanes. Appellant argues that the case supports its position, arguing that in that case, as in this one, a foreseeable use of the park exposed the public to dangers on adjacent property. We tend to agree with appellant, and find that, at least, Branzel does not establish that a reasonable lawyer would have found plaintiffs' case here untenable.
In Jordan v. City of Long Beach (1971) 17 Cal.App.3d 878, on which Bonanno also relied, the plaintiff fell on defective pavement and a protruding water pipe which were located on private property which was adjacent to public property. (Id. at p. 882.) Jordan reversed summary judgment and judgment in the city's favor. It did not hold that the test was whether the public entity had encouraged the plaintiff to expose himself to danger on adjacent property, but instead applied the traditional test, holding that "The test . . . is whether the condition created a substantial risk of harm to persons generally who would use the public property with due care in a foreseeable manner." (Id. at p. 883.) The City does not argue this case, but appellant does. We agree with appellant that Jordan supports appellant's position and indicates that there is no hard-and-fast rule, as the City would have it.
The City cites Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292 and Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242. In Joyce, a school yard gate was located in such a way that students were encouraged to cross at an uncontrolled intersection and were diverted from a safer, signal-controlled intersection. (Joyce v. Simi Valley Unified School Dist., supra, 110 Cal.App.4th at p. 299.) In Laabs, the plaintiff was injured when a driver attempted to make a left turn onto the city-owned southbound lanes of a road, an attempt made dangerous by the condition of the northbound lanes, which were owned by the county. (Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1261.) The City argues that in those cases, the public entity's actions encouraged the public to use the dangerous locations. That is an accurate description of those cases, but neither case stands for the proposition that public entity liability is limited to that situation. Neither case establishes that plaintiffs' claims against the City were so outside the law that any reasonable attorney would have thought the claims untenable.
Good faith
The City's motion under section 1038 did not address good faith, but in its reply pleading, the City wrote that several days before plaintiffs' opposition to summary judgment was due, plaintiffs offered to dismiss the City for a waiver of costs, and that plaintiffs withdrew the offer when the City insisted on its out-of-pocket costs. The City submitted the declaration of counsel to that effect. On appeal, the City asserts that sufficient evidence of lack of good faith is found in the lack of reasonable cause (a theory we have already rejected) and in the facts concerning the offer to dismiss.
Further, as appellant notes, the court's minute order notes that "At the hearing on the instant motion, plaintiffs' counsel was asked to explain the decision to continue the action against the City even after it was established that the City did not own or control the property and in particular to address why the State was dismissed when the City was not. Plaintiffs' counsel could not respond to the Court's questions and their opposition brief does not address these issues."
"Good faith, or its absence, involves a factual inquiry into the plaintiff's subjective state of mind [citations]: Did he or she believe the action was valid? What was his or her intent or purpose in pursuing it? A subjective state of mind will rarely be susceptible of direct proof; usually the trial court will be required to infer it from circumstantial evidence." (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 932 (disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7).) Good faith is linked to a belief in a justifiable controversy under the facts and law. (Hall v. Regents of University of California (1996) 43 Cal.App.4th 1580, 1586.)
We simply cannot see that plaintiffs' offer to dismiss in return for a waiver of costs is evidence that plaintiffs' filed or pursued this case in bad faith. Nothing in such an offer indicates that plaintiffs believed that they would lose at summary judgment. We say the same about plaintiffs' rejection of the City's counter-offer.
Nor do we see evidence of lack of good faith in plaintiffs' dismissal of the State, or in plaintiffs' counsel responses at oral argument.
The issue was not raised by the City, so that it is not surprising that it was not addressed in the reply pleading, or that counsel was unable to respond to the court's questions at oral argument. Counsel said as much. At oral argument, the court asked counsel to "explain to me why you distinguish the City from these other [property owners] that you were willing to dismiss." Counsel replied "I was not the lawyer who made the decision to dismiss those defendants and I was not prepared to come and talk about that today as it pertains to the City," then argued the grounds for the City's liability.
Notably, the City does not argue this on appeal, perhaps conceding that nothing in the dismissal of the State indicates that plaintiffs lacked good faith to pursue a claim against the City.
Disposition
The judgment is reversed. Appellant to recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J.
We concur:
TURNER, P. J.
MOSK, J.