Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YC047886, Lois A. Smaltz, Judge.
Sigelman Law Firm and Paul Sigelman for Plaintiffs and Appellants.
Christensen Ehret, Edward E. Sipes, and Jennifer K. Stinnett for Defendant and Respondent City of Los Angeles Department of Airports.
Bullard, Brown & Beal, Patrick E. Naughton, and Edward J. Riffle for Defendant and Respondent Peterson-Chase General Engineering Construction, Inc.
SUZUKAWA, J.
In this personal injury action, the jury found that plaintiff’s injuries were not proximately caused by defendants’ conduct. The trial court entered judgment for defendants, which we affirm.
BACKGROUND
On May 23, 2003, plaintiff Bruce Byers, an American Airlines pilot, walked into a temporary outdoor sign in the lower arrival deck area of Los Angeles International Airport (LAX). Claiming to have injured his head on the sign so severely that he could not fly as a commercial pilot, Byers sued defendants City of Los Angeles Department of Airports, also known as Los Angeles World Airports (the city), and Peterson-Chase General Engineering Construction, Inc., which installed the sign for the city.
Byers’s wife, Petra Byers, also filed a derivative claim for loss of consortium. As the opening brief raises no issues as to Petra, we will not discuss her claim.
The sign’s wooden posts were bolted to a concrete island that divides the roadway from the loading zone in front of the terminals. The island serves as a hotel shuttle stop for LAX passengers and is intended for pedestrian use. Byers, who is over six feet tall, argued that the sign was negligently placed on the narrow island without leaving sufficient space or headroom for pedestrians, in violation of municipal sign ordinances governing the placement and height of signs on public walkways.
Byers alleged theories of negligence against Peterson-Chase and violation of Government Code section 815.6 (section 815.6) against the city. Section 815.6 provides: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
Byers moved for summary adjudication of the section 815.6 claim against the city or, alternatively, summary adjudication of the issue of the city’s duty to comply with the municipal sign ordinances. Although the city’s competing motion is not included in the record on appeal, the city also moved for summary adjudication of the section 815.6 claim, contending in part that Byers’s injuries were not caused by the sign.
“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)
Of relevance to this appeal, the city argued at the summary judgment hearing that Byers’s claim that his injuries were caused by “the alleged failure to place the sign face . . . at least eight feet above the sidewalk . . . fails, as a matter of law, because the plaintiff cannot establish that it is more probable than not that he impacted the bottom of the sign face. The admissible evidence establishes that it is just as likely that the plaintiff impacted the sign frame as it is that he impacted the sign face. It is just as likely that the plaintiff tripped and hit his head on the sign frame.” The city cited Byers’s deposition testimony in support of its position that Byers was incapable of proving “that any alleged breach of any mandatory duty was the proximate cause of any claimed injury.” According to his deposition, Byers could not recall how he was injured: “A . . . From the terminal building I exited, walked across the crosswalk, . . . and I rounded that column . . . . [¶] Q . . . And then after that, you have already testified that you don’t remember what happened after that? [¶] A That’s correct. [¶] Q You don’t remember seeing the sign? [¶] A I don’t remember seeing the sign. [¶] Q You don’t remember ducking under the sign? [¶] A I don’t remember ducking under the sign.” “Q . . . Do you believe that you walked into the north side of the face of the sign, the center of the sign or the south side of the face of the sign? [¶] A I have no idea.”
According to the July 20, 2005 minute order, the trial court (Judge Jean E. Matusinka) concluded that “[t]here are no triable issues of fact as to the City of Los Angeles’s liability on the fifth cause of action for violation of Government Code Section 815. Defendant, the City of Los Angeles was required to abide by the Building and Safety Code. Here, the sign was in violation. There is no dispute that the sign did not conform with the Building and Safety Code. None of the exceptions are applicable. . . . [¶] Plaintiff’s motion for summary judgment is granted.” In the same minute order, the trial court denied the city’s competing summary judgment motion, stating that there were triable issues of material fact “as to whether plaintiff exercised due care when he ran into the sign. There is a triable issue as to whether the risk was trivial, as the sign was at forehead height. Finally, there is a triable issue of causation. [¶] Defendant’s motion for summary judgment is denied.”
In his declaration, Byers described the accident as follows: “Midway down the center island, the walkway view was blocked by a 6-foot-wide concrete column. The walkway narrows to a two-foot passage between the column and the outer curb on one side. As a result, I turned out and around the column toward the roadway. My bag was trailing behind me from my right arm. I did not want to step into traffic. At the time I did not see that on the other side of the column was the pole sign. [¶] . . . I knew I had to negotiate the narrow pathway, so I looked back to get my bag so it would be trailing behind me. As I was moving around the column, I was still looking back. I had to have the bag against the column to drag it around in order not to fall over the curb into the street. I had been walking at a good pace, and by the circumstances my forward movement carried me headlong into the bottom edge of the sign, where I struck my head. Then the lights went out. [¶] . . . When I came to, I found . . . an indented crease across the top of [my captain’s hat] corresponding to the impact from the bottom of the horizontal edge of the sign. The crease ran nearly across the crown, and shortly after the impact, I felt pain in the same place on the crown of my head, radiating down the left side of my face. By my height with my head down and looking back, and in comparison to the sign, the imprint on the hat was exactly at the point matching the height and left-to-right bottom edge of the sign.”
Although the minute order stated that Byers’s motion was granted in its entirety, the reporter’s transcript showed that the motion was granted only as to the issue of duty. According to the reporter’s transcript, when counsel for the city requested clarification on the extent of the ruling, the trial court replied that it was granting Byers’s motion only as to the issue of duty: “Mr. DeStefano [counsel for the city]: Based upon the conversation, I’m assuming that the ruling as to plaintiffs’ motion for summary adjudication is as to duty alone. It does not include causation. [¶] The Court: No, because there is a triable issue as to causation. [¶] Mr. DeStefano: That is the clarification I wanted. [¶] The Court: That is the whole issue. I mean, we . . . have circumstantial evidence as to how this injury occurred. Then you have all of these medical professionals that you are going to be deposing and getting more information. So the issue of causation is very important. [¶] Mr. DeStefano: All right. [¶] The Court: That’s still an issue. [¶] Mr. DeStefano: That’s fine, because the papers said that liability is established once duty is established. I just want to make that clear.”
During trial, the trial court (Judge Lois A. Smaltz) treated the summary adjudication order as having established only the issue of the city’s breach of duty to comply with the municipal sign ordinances. The parties presented evidence to the jury on the issues of proximate cause, damages, and comparative negligence.
The trial court instructed the jury that it was to decide whether the city’s violations of the municipal sign ordinances, which were described in the instructions, were “a substantial factor” in causing Byers’s harm. The trial court defined “substantial factor” as “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.” The trial court also informed the jury that “[m]ore than one person’s negligence, including [Byers’s], may have been a substantial factor in causing [Byers’s] harm. If so, you must decide how much responsibility each person has by determining, on a percentage basis, the extent to which his or its negligence contributed to causing the harm.”
The instruction stated: “The Los Angeles Municipal Code, section 56.08(e) . . . states, in pertinent part: No person having charge or control of any premises shall construct or maintain any structure upon any sidewalk which will interfere with the free passage of pedestrians. [¶] The City of Los Angeles Building and Safety Code . . . states in pertinent part: [¶] Section 91.6025.5.1 No sign support structure shall be erected, constructed, painted or maintained, and no permit shall be issued, if such sign or sign support structure, because of its location, size or nature creates a condition which endangers the safety of persons. [¶] Section 91.6212.3(3) A pole shall be located so as not to interfere or present a hazard to pedestrian or vehicular traffic. [¶] Section 91.6212.4 Where the lower part of a pole sign is less than eight feet above sidewalk grade or the edge of roadway grade nearest the sign, the sign shall extend to grade or shall be installed in a planter that extends beyond the edges of the sign and sign support structure and that is a minimum of 18 inches in height. [¶] Section 91.6205.10.5 No sign or sign support structure shall be located within two feet of the curb. [¶] A violation of this law has been established and is not an issue for you to decide.” (Emphasis added.)
After deliberating, the jury found by special verdict that there was insufficient evidence of causation as to both defendants. The jury found: “1. Was [Peterson-Chase] negligent? Answer: Yes. [¶] 2. Was [Peterson-Chase’s] negligence a substantial factor in causing harm to Bruce Byers? Answer: No. [¶] 3. Was City of Los Angeles’s violation of the law a substantial factor in causing harm to Bruce Byers? [¶] Answer: No.”
The trial court entered judgment for defendants and this appeal followed.
DISCUSSION
I. Summary Adjudication
Byers contends that Judge Smaltz misinterpreted Judge Matusinka’s summary adjudication order, which, in his view, resolved the issue of causation in his favor and left only the issues of comparative negligence and damages for the jury to decide. The contention lacks merit for several reasons.
First, Byers’s argument that the summary adjudication order resolved the issue of causation is at odds with the summary judgment statute. (Code Civ. Proc., § 437c.) That statute allows the summary adjudication of an entire cause of action, affirmative defense, claim for damages, or issue of duty, but does not allow the trial court to make findings of fact that fall short of establishing an entire cause of action, affirmative defense, claim for damages, or issue of duty. When the Legislature amended the summary judgment statute in 1990, it “prohibited the summary adjudication of general ‘issues’ and required instead that a summary adjudication motion dispose of one or more causes of action, affirmative defenses, claims for damages, or issues of duty. As a result of the 1990 amendment, ‘facts’ of any kind—undisputed, underlying, supporting, or subsidiary—were no longer subject to summary adjudication. (See Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 96-97.) ‘[T]he trial court’s role in deciding a motion for summary [adjudication] involves no findings of fact.’ (Soto v. State of California (1997) 56 Cal.App.4th 196, 199.)” (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1136.)
If a trial court summarily adjudicates an entire cause of action, that cause of action “shall be ‘deemed to be established,’ and the case ‘shall proceed as to the cause or causes of action . . . remaining.’ ([Code Civ. Proc., § 437c,] subd. (n)(1).) A grant of summary adjudication as to one or more causes of action does not bar other causes of action as to which summary adjudication has been denied. (Id., subd. (n)(2).) And no one may comment on the grant or denial of a summary adjudication motion to a jury. (Id., subd. (n)(3).)” (Raghavan v. Boeing Co., supra, 133 Cal.App.4th at p. 1124.)
Second, notwithstanding Byers’s position that a violation of the municipal sign ordinances created a presumption of negligence, Government Code section 815.6 expressly requires proof of causation. Byers argued below, as he does on appeal, that the city’s violation of the municipal sign ordinances rendered it liable for his injuries as a matter of law and “no further analysis need be made.” Assuming that the city’s violation of the municipal sign ordinances gave rise to a presumption of negligence, Byers has cited no authority to show that the presumption would be conclusive rather than rebuttable. “Generally, where negligence per se is presumed because of a statutory violation, the rule is that the presumption is rebuttable. [Citations.]” (Frediani v. Ota (1963) 215 Cal.App.2d 127, 135.) Moreover, even if negligence is presumed from a violation of statute, the defendant “cannot be held liable unless such negligence was the proximate cause of the injury to plaintiff, and the burden of proof in this regard is on plaintiff. As was said in County of Alameda v. Tieslau, 44 Cal.App. 332, 337: ‘By proving the defendants’ negligence without in some way fastening that negligence to the injury, a case is not made out.’” (Gallichotte v. California Mut. etc. Assn. (1935) 4 Cal.App.2d 503, 507, disapproved on another ground in Alarid v. Vanier (1958) 50 Cal.2d 617, 623.)
Finally, Byers’s assertion that Judge Matusinka granted his motion for summary adjudication of the entire section 815.6 cause of action is belied by the reporter’s transcript. The reporter’s transcript shows that Judge Matusinka granted the motion only as to duty, after finding there were triable issues of fact regarding causation, damages, and comparative negligence that precluded summary adjudication of the entire cause of action. Although the minute order contains some contrary language, when read in conjunction with the reporter’s transcript, there is no dispute that the motion was granted only as to the issue of duty. (See People v. Smith (1983) 33 Cal.3d 596, 599 [as a general rule, conflicts in the record will be harmonized if possible; otherwise, the part of the record entitled to greater credence will prevail].)
II. Failure to Obtain a Construction Permit
At trial, Byers sought to establish that his injuries were proximately caused by defendants’ failure to obtain a construction permit for the sign. The trial court excluded this theory at trial on the ground that causation may not be inferred from the mere lack of a construction permit. Byers contends on appeal that the trial court erred. Byers argues that his injuries were caused by the lack of a building permit because “if the Defendants had applied for a permit, they would have been prevented from building and installing the subject sign, and if installed it would have been ordered removed, and would have prevented the injury. If they had applied for a permit the safety specifications would also have prevented the injury.” We disagree.
In support of his position that the evidence established, as a matter of law, that his injuries were caused by either the lack of a permit or the permit violations, Byers cites Elm v. McKee (1956) 139 Cal.App.2d 353 (Elm). Although Elm discussed various jury instructions concerning the negligence per se theory, it did not hold that, as a matter of law, the theory gives rise to a conclusive presumption of negligence or eliminates the need for proof of causation in all cases. Given that cases are not authority for propositions not considered therein (Johnson v. Bradley (1992) 4 Cal.4th 389, 415), Elm is of no assistance to Byers.
Similarly, the cases cited in the reply brief, Gallichotte v. California Mut. etc. Assn., supra, 4 Cal.App.2d 503 (Gallichotte), and Burdette v. Rollefson Construction Co. (1959) 52 Cal.2d 720 (Burdette), are not helpful. In both cases, the evidence of proximate cause supported only one reasonable finding as a matter of law. In Gallichotte, the appellate court reversed a judgment for defendants, stating, “[n]ot only is the inference that the fire set by respondent employees spread to the premises of appellant a logical and reasonable one, deducible from the proven facts, but it would seem to be the only one that could reasonably be drawn from those facts. And thus the question of proximate cause becomes one of law. [Citations.]” (4 Cal.App.2d at p. 509.) In Burdette, the Supreme Court reversed the judgment for the defendant landlord, stating that “the trial court’s finding that defendants’ negligence was not the proximate cause of her injuries cannot be sustained. [Citations.]” (52 Cal.2dat pp. 726-727.)
In this case, however, Byers has failed to provide either a summary of the evidence or a complete transcript of the trial proceedings. Byers has therefore failed to establish that the evidence was susceptible to only one reasonable inference, such that the question of proximate cause was one of law.
III. Expert Testimony
Byers contends that the trial court erroneously excluded the expert testimony of Armando Flores on construction permits and David Harris on construction practices. He argues that Flores would have testified that “a permit would have been required and the consequences of not” obtaining one, and Harris would have testified that Peterson-Chase was responsible for obtaining the permit. Had this evidence been admitted, Byers argues, the jury reasonably would have found that “the sign would have never been built located as a hazard to the pedestrian Bruce Byers. It would not have been across the sidewalk when he was injured.” We are not persuaded.
The jury, having been instructed that the sign was placed on the island in violation of numerous municipal sign ordinances, nevertheless found that Byers’s injuries were not caused by Peterson-Chase’s negligence or the city’s statutory violations. Although the excluded evidence would have explained why the sign should have been built differently or placed elsewhere, it would not have explained how this particular accident was caused by the sign. Accordingly, Byers has failed to show that it was an abuse of discretion to exclude the construction permit and practices evidence.
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “The trial court is vested with very broad discretion in ruling on the admissibility of evidence. A trial court acts within its discretion when excluding cumulative and time consuming evidence. [Citations.] The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules. [Citation.] Moreover, the trial court’s ruling will be upset only if there is a clear showing of an abuse of discretion. [Citations.]” (Aguayo v. Crompton & Knowles Corp. (1986) 183 Cal.App.3d 1032, 1038.)
IV. Other Evidentiary Issues
A. Preventative Measures
Byers contends that the trial court abused its discretion in excluding evidence of various preventative measures that were not taken by Peterson-Chase to prevent pedestrians from being injured by this particular sign. He sought to show that elsewhere at LAX, Peterson-Chase had placed similar signs closer to the concrete columns supporting the upper deck, so that pedestrians “could not walk around and in between the column and the sign structure.” He also attempted to introduce evidence that elsewhere at LAX, Peterson-Clark had placed warning cones next to the columns in order to alert pedestrians before they reached the signs.
In evaluating challenges to evidentiary rulings, we must look at all the evidence, both supporting and contradicting the judgment, to determine whether, had additional evidence been presented, or some admitted evidence been excluded, the jury might have drawn different factual conclusions. Thus, we must examine all the evidence to determine whether it is reasonably probable that a different result would have been reached absent any error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.)
As we previously mentioned, Byers has failed to provide a complete reporter’s transcript and summary of the evidence at trial. His opening brief mentions only the evidence presented at the summary adjudication hearing, which showed that he did not remember how the accident occurred. Although Byers could not say whether he was trying to walk between the column and the sign structure, or trying to duck beneath the sign, he did state that he was looking backward when the accident occurred. If Byers was looking backward when he fell, moving the sign closer to the column or placing a warning cone in front of the sign would not have protected him. Although raising the face of the sign might have protected him, the record is unclear whether he hit the face of the sign or its wooden support beams. We conclude that Byers has failed to show that it is reasonably probable the jury would have ruled in his favor had the excluded evidence been admitted.
B. Dr. James Kent
Byers presented the expert testimony of a kinesiologist, Dr. James Kent, who is not a medical doctor, concerning various aspects of the accident, including Byers’s estimated speed when he hit the sign. Among other things, Kent explained that according to “speeds for his age group, maximum walking, the mean plus one standard deviation above the mean,” it was “reasonable to believe” that Byers’s speed was between “about four and a half and six miles an hour” when he hit the sign.
In response to a question regarding the effect of the blow to the head on Byers’s spine, Kent testified that when Byers hit his head on the sign, his torso continued to move, which created “an upper cervical spine buckling phenomenon.” The trial court sustained an objection to this testimony on the ground that Kent was not a medical doctor. For the same reason, the trial court precluded Kent from testifying about the probability that Byers had hit the sign with sufficient force to suffer a concussion. The trial court also excluded Kent’s testimony regarding the use of standard tables to predict the probability of sustaining a concussion.
Byers contends on appeal that the trial court abused its discretion in excluding the above portions of Kent’s testimony. We disagree. Given that Kent is not a medical doctor and Byers could not recall how the accident occurred, Kent’s opinions regarding the force of impact, cervical spine buckling phenomenon, and probability of concussion were necessarily based on estimates or assumptions regarding the accident. Under these circumstances, it was not unreasonable for the trial court to conclude that the minimal probative value of such evidence was exceeded by the risk of prejudice and confusion that could result from its admission. Accordingly, Byers has failed to show that it was an abuse of discretion to exclude portions of Kent’s testimony under Evidence Code section 352.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: WILLHITE Acting P. J., MANELLA J.