Opinion
C057239.
1-6-2009
DANA DVORAKOVA DEES, Plaintiff and Appellant, v. 520 CAPITOL MALL, INC., Defendant and Respondent.
Not to be Published
Plaintiff Dana Dvorakova Dees was riding her bicycle on the sidewalk of N Street in Sacramento when she was struck by a motor vehicle pulling onto N Street from an alley on property owned by defendant 520 Capitol Mall Inc. After settling her lawsuit against the motorist, plaintiff seeks to impose liability on defendant for negligence and premises liability. Plaintiff appeals from summary judgment entered in favor of defendant and the denial of plaintiffs motion for new trial. Plaintiff contends triable issues exist as to whether bushes and a building obstructed the view and contributed to the accident. We shall conclude the dispute about the alleged obstructions is immaterial, because undisputed evidence showed plaintiff and the motorist saw each other in time to avoid the accident, and plaintiff admitted she kept going because she assumed the motorist would stop. We shall therefore affirm the judgment.
STANDARD OF REVIEW
A motion for summary judgment should be granted if the submitted papers show that "there is no triable issue as to any material fact," and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); undesignated statutory references are to the Code of Civil Procedure.) A defendant meets his burden of showing that a cause of action has no merit if he shows that one or more elements of the cause of action cannot be established, or that there is a complete defense. (§ 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists. (Ibid.)
The burden of persuasion remains with the party moving for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861.) "When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true (id. at p. 851), or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain, needed evidence. (Id. at p. 854.) We review the record and the determination of the trial court de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)" (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003; see also, Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)
"`First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving partys showing has established facts which negate the opponents claims and justify a judgment in movants favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (Waschek v. Dept. of Motor Vehicles (1997) 59 Cal.App.4th 640, 644.)
THE PLEADINGS
Plaintiff brought defendant in as Doe 2 in a second amendment to her complaint. The complaint alleged the following counts: (1) General Negligence, (2) "Motor Vehicle," (3) Intentional Tort with punitive damages, (4) premises liability, and (5) violation of the Labor Code by plaintiffs employer. The complaint alleged as follows: On July 12, 2003 (the parties agree it was July 11), plaintiff was riding her bicycle on the sidewalk of N Street, eastbound toward Sixth Street, when a motorist (named in the complaint as Mara Ramiro but later identified as Madhu Prasher) operating a motor vehicle approached the exit of a parking garage that exited onto N Street. The motorist saw Plaintiff approaching but, instead of slowing down to let plaintiff pass, accelerated to cut plaintiff off. The motorist struck the bicycle, throwing plaintiff over the hood of the car and onto the pavement.
The other defendants — Mara Ramiro, Madhu Prashar, American River Bank, Standard Parking, and Hank Fisher Properties are not parties to this appeal.
The complaint misused Doe defendants by alleging almost everything against Does 1 through 20, e.g., that Does 1 to 20 operated the motor vehicle and employed the person who operated the motor vehicle and owned the motor vehicle and entrusted the vehicle to the operator and owned and operated the premises. However, it is clear plaintiffs claim against this defendant arises from its real property ownership of the alley. Defendant prudently mentioned in its separate statement of undisputed facts that plaintiff alleged defendant operated/owned/entrusted the motor vehicle and committed an intentional tort — to which plaintiff responded "Disputed" without further comment. Yet plaintiff responded "Undisputed" to defendants assertion that plaintiff appeared to allege entitlement to punitive damages as a result of the manner in which defendant, as Doe 2, operated the vehicle, and alleged defendant was guilty of malice, fraud and oppression. On appeal, plaintiff says she abandoned the intentional tort theory and advances only a negligence theory.
The complaint alleged (1) the parking area and property were negligently designed and maintained, contributing to plaintiffs injuries, and (2) defendant and others controlled the alley way for egress and exit to N Street, creating a blind corner for bicyclists forced to use the sidewalk as the only safe route eastbound along N Street, which has no bike lanes.
We presume defendant filed an answer denying the allegations, but the answer is not part of the record on appeal (appellants appendix in lieu of clerks transcript).
SUMMARY JUDGMENT MOTION
Defendant moved for summary judgment, on the grounds that plaintiff had no evidence to establish any claim against defendant, and the undisputed facts established that defendant did not breach any duty to plaintiff.
Defendants separate statement of undisputed facts included the following:
Plaintiff, age 47 at the time of the accident, is an experienced bicyclist. At the time of the accident, she worked as a custodial cleaner at four properties owned by her employer. She rode her bicycle to get from one property to another on days when the weather was dry. When it was raining, she walked.
Plaintiff testified in deposition that she was riding her bicycle eastbound on the sidewalk on the north side of N Street. There is no bicycle lane on N Street, which is a one-way street eastbound. Plaintiff passed Fifth Street and approached Sixth Street. When plaintiff was three to four meters (9.84 to 13.12 feet) from an alleyway, she saw Prashars car coming southbound down the alley towards N Street. When plaintiff first saw it, Prashars car was about 10 meters (32.8 feet) from the sidewalk. Plaintiff and the driver (Prasher) exchanged looks — they looked into each others eyes. It was a very fast exchange of looks; plaintiff testified, "It was — (Snapping fingers.) It was very fast [ex]change." Plaintiff said she was traveling at about the speed a person would walk and "probably" could have stopped her bicycle in one-half meter (1.64 feet). However, plaintiff said she did not stop but instead kept going because, since the motorist saw plaintiff and since plaintiff had the right-of-way, plaintiff assumed the motorist would stop. The motorist did not stop but kept going and collided with plaintiffs bicycle on the sidewalk.
One meter is 39.37 inches. (Merriam-Websters Collegiate Dictionary (11th ed. 2006) p. 782.)
Defendant submitted excerpts of plaintiffs deposition, including the following:
"Q So you kind of — in your own mind, you exchanged this look with the driver of the . . . car and because of that, youre thinking, that driver sees me, sees me here on the sidewalk?
"A Yes.
"Q And because the driver sees you, youre thinking, shes going to stop before she comes onto the sidewalk?
"A Correct.
"Q So you keep continuing down the sidewalk?
"A Yes, I was. Because nothing told me here, stop or some lights or something to warn me.
"Q Nothing to warn me?
"A Yeah. It was, you know — therefore; I presume she was stopped [sic ]. I didnt stop. I was continued [sic]."
English is plaintiffs second language. She did not claim any communication problem.
Plaintiff testified:
"Q. So you did not apply your brakes before because you thought you had the right-of-way?
"A. Yes.
"Q. Obviously there was no stop sign for you there, correct?
"A. There was nothing.
"Q. But you saw the car coming, moving towards you, didnt you?
"A. She also, yes.
"Q. Did you just assume that she would stop?
"A. Yes."
Defendant submitted photographs of the location and a declaration from defendants president, Ronald Russell, attesting defendant did not own, operate, entrust, or have any connection or involvement with Prashars vehicle, and is not the agent or employee of any other defendant. The alley is on property owned by defendant and runs north-south between the Wells Fargo garage (to the west) and 520 Capitol Mall and its separate structure parking garage (to the east). Defendant owns the parking garage at 520 Capitol Mall but contracts with (another defendant) Standard Parking, to manage and maintain it. The Wells Fargo Parking Garage building ends approximately 15 feet from the N Street sidewalk. Low bushes span that distance. When patrons exit defendants parking garage, a "ONE WAY" sign directs them to the right (north), toward Capitol Mall, and the sign was there the day of plaintiffs accident.
Defendant submitted deposition testimony of the motorist, who said she parked at the 520 Capitol Mall garage every workday for a year before the accident. She always turned left (south) out of the garage, toward N Street. She always stopped at the sidewalk to see if anyone was coming. On the day of the accident, she drove no faster than 5 miles per hour down the alley and then stopped a couple of inches onto the sidewalk. Neither the building nor the bushes obstructed her view of N Street or the sidewalk. She could see down the N Street sidewalk. Cars were coming down N Street. She said she was waiting for a break in the N Street traffic when plaintiffs bicycle "came too fast" and hit the car.
THE OPPOSITION
In her opposition to summary judgment, plaintiff admitted she and the motorist exchanged glances before the accident. Indeed, plaintiff submitted an excerpt of the motorists deposition in which the motorist admitted seeing plaintiff on the bicycle "a few seconds" before the impact. In response to the assertion that plaintiff presumed the motorist would stop, plaintiff responded, "Disputed as to the inference that Plaintiff reached an unreasonable conclusion that she had the right of way. [Citations to Vehicle Code.]" In response to the assertion that plaintiff did not apply her brakes because she thought she had the right of way, plaintiff responded, "Assumes facts not established by defendants evidence that in spite of her having the right of way, that in addition she had time to react and use her brakes during the emergency situation of the car suddenly approaching her bicycle." Plaintiff cited the deposition of Lillian Stark, a Wells Fargo garage parking attendant who saw the accident as she stood outside the N Street entrance of the Wells Fargo garage, smoking a cigarette. Having seen each other on prior occasions, Stark and plaintiff waved to each other as plaintiff passed by on her bicycle. Then, said Stark, plaintiff "just kept on going, and all of a sudden I saw a car rammed her back wheel, and she flew." Plaintiff never slowed her pace as she approached the alley. The car never stopped from the moment Stark first saw it, but Starks view was partly blocked by the hedge.
There was no inference that plaintiffs conclusion was unreasonable.
(Thus, plaintiff did not present any evidence that disputed her deposition testimony that she had time to stop but kept going because she assumed the motorist would stop.)
Plaintiff disputed her own deposition testimony about the bicycles speed, citing Starks testimony that plaintiff was riding at a normal speed for a bicycle, a little faster than a person would walk. Plaintiff disputed that she could have stopped in one-half meter, asserting, "Assumes facts not established by Defendants evidence, that Plaintiff had time to react reasonably to her circumstances, then use her brakes." She cited an e-mail from a safety and traffic engineering expert to plaintiffs lawyer, agreeing a stop sign in the alley would improve safety and stating, "There simply isnt sufficient sight distance for safety in this configuration. It certainly would be reasonable for an exiting auto to be going 15 mph (22 feet per second) and a bicyclist going 10 mph (about 15 feet peer [sic] second) on the sidewalk. In this combination, a Stop Sign is about the only device that would prevent a collision. In the case of a pedestrian vs. car combination, the walker could probably stop if a car exited at a foreseeable speed." Plaintiff submitted a declaration from the expert, opining the intersection of the private alley and the sidewalk constituted a hazard due to "inadequate sight distance" between the eastbound bicycle and the southbound car.
The deposition excerpts show only that the witness said it was a normal speed. However, one page appears to be missing from appellants appendix in lieu of clerks transcript. We shall assume for purposes of this appeal that the witness also said it was a little faster than a person would walk. We need not decide whether plaintiff can contradict her own testimony with third-party testimony, because the conflict about speed is immaterial, given the undisputed evidence supporting the inference that plaintiff could have stopped in time to avoid the accident.
Plaintiff cites no evidence that these were the speeds of the car and bicycle involved in this accident.
Plaintiff disputed that the accident happened on the sidewalk rather than in the alley, asserting, "The section of the alley, which intersected with the sidewalk was just as much a part of the alley as a part of the sidewalk."
Plaintiff disputed that defendant had no connection with the motorist, asserting the motorist was a parking licensee to whom Standard Parking had issued a monthly parking pass. Plaintiff disputed that the "ONE WAY" sign was present on the day of the accident. Plaintiff submitted deposition testimony of the motorist, who said the one-way sign was placed there after the accident. Plaintiff also submitted evidence that defendant had construction/renovation work going on at the time, which, according to plaintiff, impeded exit onto Capitol Mall. Plaintiff cited deposition testimony of defendants president that the alley was not wide enough for two-way traffic, and it was logical to make it one-way northbound because there was "much better visibility" at Capitol Mall.
Plaintiff disputed that the bushes were low. Plaintiff submitted photographs and argued an overgrown hedge and tree, as well as the corner of the Wells Fargo building, obstructed the view of both plaintiff and the motorist.
Plaintiff submitted her own "ADDITIONAL SEPARATE STATEMENT OF FACTS," asserting various matters ultimately immaterial to the appeal, e.g., that the motorist always turned left toward N Street when she left the garage, and that the 520 Capitol Mall garage attendant who watched the motorist leave that day did not try to stop her from driving toward N Street.
THE REPLY
Defendant filed a reply and objections, including an objection that the speeds used by plaintiffs experts were speculative and not based on the evidence. Defendant pointed out the evidence showed plaintiff testified she was riding at about the speed a pedestrian would walk (which certainly would not be 10 miles per hour), and Prashar testified she was driving her car at about five miles per hour.
THE RULING
The trial court issued a tentative ruling to sustain defense objections to the e-mail of plaintiffs expert and portions of his declaration (and other evidence), but to deny the motion for summary judgment on the ground a trier of fact could find defendant partly liable for failure to control traffic so it exits to Capitol Mall. However, after oral argument, the trial court granted summary judgment. The minute order reiterated the courts ruling on the evidentiary objections. The court said defendant met its burden to show that plaintiff had no evidence that any condition of defendants property caused or contributed to the accident, and accordingly the burden shifted to plaintiff. The court recounted plaintiffs evidence and concluded, "The evidence is not sufficient to meet plaintiffs burden. Although there is a[n] issue of fact as to whether the `one way sign was posted on the day of the accident, plaintiff does not show that it was a factor in the incident. As noted above, plaintiff testified that she saw the car approaching in plenty of time to stop but did not because she assumed the car would stop. She has not shown that a condition of the property was a factor in causing the accident or that any negligence on the part of the defendant was a factor in causing the accident."
MOTION FOR NEW TRIAL
Plaintiff filed a motion for new trial on every ground stated in section 657, i.e., irregularity in the proceedings, improper court order, abuse of discretion, accident or surprise, newly-discovered evidence, insufficiency of the evidence, decision contrary to law, and error in law. Plaintiff sought to introduce new evidence about the height of the hedge and the landscaping maintenance of the hedge. Defendant opposed the motion.
The trial court denied plaintiffs motion for new trial, stating plaintiff failed to show grounds for a new trial and was not entitled to oral argument or consideration of her unauthorized reply papers.
Plaintiff appeals from the ensuing judgment entered in favor of defendant, challenging the courts rulings on both motions.
DISCUSSION
I. Summary Judgment
Plaintiff misunderstands the nature of this appeal. She argues that, because causation involves factual questions decided under a flexible standard of reasonableness (Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal.App.3d 709, 719 [review of judgment following jury trial]), she is entitled to present her case to a jury. She claims the trial court granted summary judgment on the ground of insufficiency of evidence, an improper standard for ruling on a summary judgment motion. However, although causation is ordinarily a question of fact, it becomes one of law where the facts are uncontroverted and only one deduction or inference may reasonably be drawn. (Ibid.) Moreover, as we have stated ante, section 437c authorizes summary judgment when a defendant establishes that the plaintiff does not have and cannot reasonably obtain evidence needed to prove an essential element of the plaintiffs case. Here, causation is an essential element of plaintiffs case. Defendant showed plaintiff could not prove that any condition of defendants property caused or contributed to the accident.
Plaintiff contends triable issues of material fact exist regarding the question whether the dangerous condition of defendants property caused the collision in light of the foliage and Wells Fargo building, which allegedly obstructed the vision of plaintiff and the motorist. However, while plaintiff has shown factual disputes, she has not shown any dispute about the material facts.
Plaintiff wants to talk about the height of the hedge, the foliage of the tree, the corner of the Wells Fargo building, the absence of the one-way sign, and the construction taking place in the alley which assertedly led defendant to disrupt its usual "safe" design directing traffic to exit to Capitol Mall and to redirect traffic to N Street, which assertedly was not a safe route.
However, plaintiff fails to show any evidence that exiting onto N Street was unsafe. That defendants president testified Capitol Mall had better visibility does not mean the N Street route was unsafe.
The dispute about obstructions is not material, because the asserted obstructions did not cause or contribute to the accident. Kostecky v. Henry (1980) 113 Cal.App.3d 362, in affirming a directed verdict against a defendant motorist who collided with the plaintiff, said the defense experts testimony that a street sign obstructed the view was insubstantial to support a finding that it contributed to the accident, because the expert admitted the view would be unobstructed as soon as a driver came abreast of the sign, and the defendant-driver did not say the sign blocked his view. (Id. at p. 377.)
Here, we know the items cited by plaintiff regarding the supposed view obstructions did not cause or contribute to the accident, because the undisputed evidence shows plaintiff and the motorist saw each other before the accident in time to stop. We reject plaintiffs argument that evidence about the obstructions must have been material because the trial court mentioned it in its summary of the case. We also reject plaintiffs claim that the trial court "reversed" its ruling after oral argument. The trial court did not rule before oral argument but merely issued a tentative ruling.
Plaintiff argues a factual question exists as to whether the motorist had time to stop. Plaintiff claims the trial court impermissibly resolved the conflicting evidence on this point. However, plaintiff fails to cite any evidence that the motorist did not have time to stop. In contrast, defendant presented evidence that the motorist did have time to stop, i.e., plaintiff testified she and the motorist exchanged looks and plaintiff chose to keep going because she believed the motorist would stop. The reasonable inferences to be drawn from this testimony are that plaintiff believed the motorist had time to stop, and the motorist did have time to stop. Summary judgment may be granted based on the evidence "and all inferences reasonably deducible from the evidence," except "if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (§ 437c, subd. (c).) Plaintiff presented nothing to contradict the evidence and inference that plaintiff and the motorist both had time to stop. That the motorist failed to stop does not support an inference that she had no time to stop. That the motorist said plaintiff came "too fast" does not support an inference that the motorist was saying she had no time to stop, because according to the motorist, she was already stopped, and plaintiffs bicycle hit the stopped car.
Plaintiff argues a factual dispute exists as to whether or not the motorist stopped. However, the question whether or not the motorist stopped is immaterial to this defendant, in light of the evidence that plaintiff and the motorist saw each other in time to avoid the accident.
Contrary to plaintiffs view, the fact that she and the motorist saw each other does not go merely to the question of plaintiffs comparative negligence. It defeats plaintiffs theory that conditions of defendants property obstructed the view.
Plaintiff argues that if she and the motorist had actually seen each other in time to stop, the common sense inference is that they would have stopped and avoided the accident. Plaintiff therefore concludes there must not have been time to avoid the accident. However, plaintiff ignores her own testimony that, even though there was time to stop, she affirmatively chose not to stop because she assumed the motorist would stop. Thus, the failure to stop does not mean there was no time to stop. Accordingly, there is no room for the inference plaintiff asks us to draw.
Plaintiff claims she testified "in essence" that the reason she did not stop was not only because she believed the motorist would stop, but also because the incident was happening "in a snap." However, the fact that plaintiff indicated she and the motorist exchanged looks in a "snap" (and the motorists testimony that plaintiff came too fast) does not detract from plaintiffs testimony that they saw each other in time to avoid an accident, and plaintiff simply chose to keep going because she assumed the motorist would yield the right-of-way. This means the accident was not caused by an obstructed view or any other condition of the premises.
Plaintiff argues that, if there was time for the motorist to stop, the fact that the motorist did not stop meant the motorist intentionally hit the bicycle (though plaintiff also says she has abandoned her intentional tort theory). We disagree. The motorists failure to stop fits a traditional negligence scenario.
We conclude the trial court properly granted summary judgment in favor of defendant.
II. Motion for New Trial
Plaintiff argues the trial court erred in denying her motion for new trial. We disagree.
Under section 657, a decision may be vacated and a new trial granted for specified grounds "materially affecting the substantial rights of [a] party." The grounds relied upon by plaintiff on appeal are (1) "[n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial" (§ 657(4)), and (2) irregularity of the proceeding (§ 657(1)) because the new evidence assertedly impeached a party who (according to plaintiff) deliberately misrepresented facts.
Plaintiff fails to identify the standard of review for an order denying a new trial motion. It has been said that, "[w]hen the court has denied a motion for a new trial, [the reviewing court] must determine whether the court abused its discretion by examining the entire record and making an independent assessment of whether there were grounds for granting the motion. [Citation.]" (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832, citing Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161, which cited City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.) It seems to us that abuse of discretion and independent review are different standards. Nevertheless, even applying independent review (the standard more beneficial to plaintiff), we shall conclude there is no basis for reversal.
Plaintiff argues her motion for new trial submitted new evidence (landscaping records and photographs) that would impeach the testimony of defendants president about the condition of the hedges on the day of the accident. Even though plaintiff herself testified the bushes were lower and thinner than bushes in certain photographs, she argues we should not go by her, because she was in shock after being hit by a car. Plaintiff also argues she submitted new evidence that defendants president failed to disclose the fact that construction work was being done in the alley at the time in question, which is why defendant did not maintain the usual safe flow of traffic toward Capitol Mall rather than N Street. Plaintiff suggests on appeal that defendant engaged in sanctionable behavior in this litigation—a point hotly disputed by defendant in its respondents brief.
However, plaintiff was previously aware of the construction work and raised it in her opposition to summary judgment. In any event, even assuming for the sake of argument that plaintiffs evidence supports her assertions and could not have been produced earlier (points very much disputed by defendant), none of it matters. The presence or absence of a one-way sign and the height of the hedges do not matter, because plaintiff and the motorist saw each other in time to avoid the accident, and plaintiff chose to keep going under the erroneous assumption that the motorist would yield the right-of-way. Accordingly, nothing about the condition of the premises caused or contributed to the accident, and the trial court properly denied the motion for new trial.
We conclude plaintiff fails to show grounds for reversal of the judgment. We need not address defendants objections to plaintiffs appellate brief.
DISPOSITION
The judgment in favor of defendant 520 Capitol Mall, Inc. is affirmed. Defendant shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur:
DAVIS, J.
NICHOLSON, J.