Opinion
NOT TO BE PUBLISHED
Solano County Super, Ct. No. FCS026325
RIVERA, J.
Plaintiffs appeal a judgment entered after the trial court granted the California Highway Patrol’s (CHP) motion for summary judgment in this action seeking recovery for damages arising out of the death of Renee Caraska in a traffic accident. Plaintiffs are Caraska’s minor children through their guardian ad litem, Jennifer Moss. We affirm.
I. BACKGROUND
In this action, plaintiffs allege that Caraska was killed in a motor vehicle accident in which her car hit a truck negligently driven by Amrik Bagri, entrusted to him by Manohar Purewal and M S P Trucking. They assert a cause of action for premises liability against CHP, alleging that the portion of freeway at which the accident occurred was adjacent to a truck scale facility that was in a dangerous condition.
Richard Caraska and Raymond Caraska, alleged to be Caraska’s adult sons, were also named as defendants pursuant to Code of Civil Procedure section 382. In an earlier appeal, we affirmed the summary judgment granted in favor of Bagri, M S P Trucking, and Purewal. (Ruiz v. M S P Trucking (Sept. 29, 2008, No. A117066) [nonpub. opn.] pp. 1, 8.)
CHP moved for summary judgment. In support of its motion, it presented evidence that at about 10:20 on the morning of November 4, 2003, Caraska was driving eastbound on Interstate 80, approaching the Cordelia Scale Facility. A tractor-trailer driven by Bagri was in front of her. It had stopped in the fourth lane from the left of the freeway, waiting to enter the scale facility. Caraska drove into the rear of the truck, and the impact of the collision killed her.
The freeway at that location had five lanes. The far right lane, or the fifth lane, was a dedicated exit lane for the scale facility. The fourth lane split at the entrance to the scale facility to allow a vehicle to continue straight on the freeway or to enter the facility.
At the time of the collision, the weather was sunny and warm, and the road was dry. The roadway at the scale facility was straight and level. Christine Hall, who was driving the car directly behind Caraska’s, saw Bagri’s truck waiting in lane No. four. She testified she could see that traffic was stopping, and she slowed down gradually as she approached the scale facility. Hall wondered why the brake lights of Caraska’s car were not on. Other drivers also saw that traffic was backed up at the scale facility. However, Caraska did not brake, swerve, or attempt any defensive maneuvers before hitting the truck. Law enforcement personnel found no preexisting mechanical defects that contributed to the collision.
In opposition to CHP’s motion, plaintiffs presented evidence that CHP managed the scale facility; that it had a policy of closing down the entrance to the scale facility when traffic entering the scales extended onto the freeway, but did not do so until after the accident in question; that the CHP manual stated traffic flow across a platform scale or weighing area should be maintained so vehicles did not back up onto the roadway; that, in fact, it was the practice of CHP to close the facility when trucks backed up onto the freeway as a safety measure; that trucks regularly backed up onto the freeway; and that CHP knew vehicles stopped at the scale facility could lead to accidents.
The trial court granted summary judgment to CHP and entered judgment in its favor, ruling that the traffic congestion at the scale facility was not a dangerous condition of public property, and that there was no evidence of a condition which would cause a driver, in the exercise of due care, to be unable to see a truck stopped in her lane of traffic in time to avoid colliding with it.
II. DISCUSSION
A. Standard of Review
“We review a grant of summary judgment de novo. [Citation.] In performing our de novo review, we employ a three-step analysis. ‘First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact.’ [Citations.] To shift the burden, the defendant must conclusively negate a necessary element of the plaintiff’s case or demonstrate that there is no triable issue of material fact requiring a trial. [Citation.] If the evidence does not support judgment in the defendant’s favor, we must reverse summary judgment without considering the plaintiff’s opposing evidence. [Citation.] Any evidence we evaluate is viewed in the light most favorable to the plaintiff as the losing party; we strictly scrutinize the defendant’s evidence and resolve any evidentiary doubts or ambiguities in the plaintiff’s favor. [Citation.]” (Barber v. Chang (2007) 151 Cal.App.4th 1456, 1462-1463, italics omitted (Barber).)
B. Dangerous Condition of Public Property
Plaintiffs alleged that the scale facility constituted a dangerous condition of public property. (Gov. Code, § 835.)
All statutory references are to the Government Code.
Under the Tort Claims Act (§ 810 et seq.), public entities are not liable for injuries “[e]xcept as otherwise provided by statute” (§ 815). “Generally speaking, under section 835 a public entity is liable for an injury if the plaintiff establishes: (1) ‘that the property was in a dangerous condition at the time of the injury’; (2) ‘that the injury was proximately caused by the dangerous condition’; (3) ‘that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred’; and (4) either (a) that a public employee negligently or wrongfully ‘created the dangerous condition’ or (b) that ‘[t]he 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.’ ” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 715-716, italics and fns. omitted (Ducey).)
“Section 830 defines a ‘[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 is used with due care in a manner in which it is reasonably foreseeable that it will be used.’ 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.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439 (italics added) (Brenner), citing Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196 (Chowdhury).) “The existence of a dangerous condition is usually a question of fact, but may be resolved as a question of law if reasonable minds can come to but one conclusion.” (Chowdhury, supra, 38 Cal.App.4th at p. 1194; see also Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810.)
The “due care” element is dispositive here. Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384, explains this requirement as follows: “A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property... with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.’ [Citation.] Any 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.] [¶] Reasonably foreseeable use with due care, as an element in defining whether property is in a dangerous condition, refers to use by the public generally, not the contributory negligence of the particular plaintiff who comes before the court; the particular plaintiff’s contributory negligence is a matter of defense. Nevertheless, the plaintiff has the burden to establish that the condition is one which creates a hazard to persons who foreseeably would use the property with due care.” (Italics added.) Citing Mathews, the court in Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 560, referred to “the commonsense proposition that premises liability may not be imposed on a public entity when the danger of its property is readily apparent.” (See also Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131-132.) As stated in Fredette, “[e]ven though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.” (Id. at p. 132.)
CHP argues, and we agree, that the undisputed facts show that the scale facility did not create a hazard if motorists exercised due care. The trucks waiting to enter the facility were clearly visible to drivers around Hall. No conditions, either of weather or of the road, prevented drivers exercising due care from seeing the traffic ahead and stopping in time to avoid a collision.
Brenner is instructive. The plaintiff there was struck by a car as she crossed Chase Avenue. She sued the City of El Cajon, alleging that the street was in a dangerous condition and that the city had failed to install safety devices, although it knew or should have known that many pedestrians would use the intersection in question because of the attraction created by two bus stops, a park, a convenience store, and a middle school at or near the intersection. (Brenner, supra, 113 Cal.App.4th at pp. 436-438.) The Court of Appeal concluded that the facts the plaintiff had alleged did not support a finding of a dangerous condition of public property, and that therefore the trial court had correctly sustained the city’s demurrer. (Id. at pp. 443-444.) It first reasoned that the allegation that the volume and speed of vehicular traffic had increased after the street was widened would not support a finding of a dangerous condition, “at least in the absence of some additional allegation that the physical characteristics of Chase Avenue created a substantial risk that a driver using due care while traveling along Chase Avenue would be unable to stop for pedestrians who were using due care while crossing at the Chase/Estes intersection. [Citations.] The second amended complaint contains no allegations that Chase Avenue had blind corners, obscured sightlines, elevation variances, or any other unusual condition that made the road unsafe when used by motorists and pedestrians exercising due care....” (Id. at pp. 440-441.) Second, the court concluded that the facts there were various attractions near the intersection and an increasing number of pedestrians crossed Chase Avenue to patronize the facilities did not mean the street was in a dangerous condition, absent an allegation that some peculiar condition made it unsafe to cross the street “even when motorist and pedestrians are exercising due care.” (Id. at p. 441.) Third, the court rejected the theory that the city was liable for failing to install traffic safety devices. (Id. at p. 442; § 830.4.) Here, as we have concluded, the undisputed evidence CHP presented in support of its motion for summary judgment shows that when motorists use due care, the scale facility does not create a dangerous condition.
Plaintiffs contend, however, that CHP is liable because it affirmatively created the traffic congestion which led to the collision, and suggest that the circumstances here are similar to those in Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 1473 (Constantinescu). There, a small lot was used as a place for parents to pick up their children after school. (Id. at p. 1468.) The lot became overcrowded and congested when cars were present, conditions were “chaotic,” and the school district knew the lot was hazardous, particularly after it eliminated “ ‘staggered’ ” dismissal times and all children were dismissed from school at one time. There was no barrier between the curb and the area when the children waited to be picked up. A car driven by a parent picking up her children after school lurched forward and jumped the curb, injuring two children. The jury found the lot was in a dangerous condition for which the school district was liable, and the Court of Appeal affirmed. (Id. at pp. 1469 1470.) In doing so, it first noted that the district had a special relationship with its students and, as a result, it had a heightened duty to make the school safe, and that children were held to a lower standard of care than adults. (Id. at pp. 1472-1473.) It acknowledged that traffic congestion is ordinarily not a dangerous condition. (Id. at p. 1473, citing Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 7.) However, the court concluded that in these circumstances, the district had helped create “traffic congestion that was particularly dangerous,” and that a jury could reasonably conclude the area was dangerous within the meaning of section 830, particularly when a school district was involved. (Constantinescu, supra, 16 Cal.App.4th at pp. 1473-1474.)
Constantinescu is distinguishable on two grounds. First, there is no evidence that CHP was in a special relationship with motorists on the freeway or that it owed them a heightened duty of care. Second, there is no basis for a jury to conclude that the congestion in the area around the scale facility was “particularly dangerous.” As noted in Constantinescu, traffic jams are a characteristic of modern life (Constantinescu, supra, 16 Cal.App.4th at p. 1473; see also McGarvey v. Pacific Gas & Elec. Co. (1971) 18 Cal.App.3d 555, 562), and a driver using due care will be alert for slow or stopped traffic on a heavily travelled freeway. As in Brenner, there were no obstructions that would make the highway unsafe when used by motorist exercising due care. (See Brenner, supra, 113 Cal.App.4th at pp. 440-441.)
Brenner distinguished Constantinescu on the grounds that it involved a special duty owed by a school district to its students, and also noted that in Brenner, there was no allegation that the city had affirmatively created chaotic traffic conditions that posed risks beyond those inherent on a sidewalk that abuts a road. (Brenner, supra, 113 Cal.App.4th at p. 443.) It also distinguished the opinion of our Supreme Court in Ducey. (Brenner, at pp. 442-443 & fn. 5.) The court in Ducey affirmed a judgment finding that the state could be liable under section 835 for failure to place a median barrier on a portion of State Route 17 (the Nimitz Freeway). (Ducey, supra, 25 Cal.3d at p. 711.) In doing so, it noted that although cross-freeway accidents may often result from the negligence of one or more drivers, the jury could reasonably conclude that “the lack of a median barrier created a substantial risk of injury even in the absence of negligent conduct.” (Id. at pp. 719-720.) Here, as in Brenner, there is no “foundational showing” that a dangerous condition existed. (See Brenner, supra, 113 Cal.App.4th at p. 443.)
Thus, we conclude the evidence CHP presented was sufficient to meet its burden to show that plaintiffs could not prevail on their cause of action against it. We also conclude that plaintiffs did not meet their burden to raise triable issues of fact. (See Barber, supra, 151 Cal.App.4th at pp. 1462-1463.) Plaintiffs point to evidence that trucks regularly backed up onto the freeway, that CHP had a practice of shutting down the scale facility when trucks were backed up onto the freeway, and that it failed to do so at the time in question. None of this evidence, however, would support an inference the scale facility created a condition that was dangerous for motorists using due care.
Plaintiffs contend, without citation to authority, that CHP’s duty to operate the truck scales so as to avoid trucks backing up onto the freeway was mandatory. Plaintiffs did not allege below that CHP was liable for failing to discharge a mandatory duty (see § 815.6 [public entity liable for injury caused by its failure to discharge a mandatory duty “imposed by an enactment that is designed to protect against the risk of a particular kind of injury”]), instead basing their cause of action against CHP only on a theory of premises liability. As plaintiffs do not cite section 815.6 in their briefs on appeal, we conclude they are not attempting to premise CHP’s liability on this provision for the first time now. In any case, they have not established that the CHP manual, which stated that traffic flow should be maintained so that vehicles did not back up on to the roadway, qualified as an enactment. (See Posey v. State of California (1986) 180 Cal.App.3d 836, 847-849 [internal CHP guideline not enactment within meaning of section 815.6].)
Plaintiffs also raise a number of challenges to the trial court’s rulings on the parties’ objections to evidence. They have provided inadequate citations to the portions of the record that contain the disputed evidence, and they have cited no authority for their contentions. Accordingly, we will treat these points as waived. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) In any case, we have reviewed the record, and even if the trial court had ruled otherwise on the disputed evidence, our conclusions would be the same.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.