Opinion
B189954
12-4-2006
ARMANDO RIVAS, a Minor, etc., Plaintiff and Appellant, v. CITY OF SOUTH GATE, Defendant and Respondent.
Office of Raul Granados, Raul Granados, Lizette Espinosa for Plaintiff and Appellant. Adorno Yoss Alvarado & Smith, Rick D. Navarrette, Tiffany Morgan Birkett for Defendant and Respondent.
Armando Rivas was struck by an automobile and seriously injured while crossing the street at a marked crosswalk in the City of South Gate (hereinafter, the City). Rivas sued the City. He alleged in his second amended complaint, in pertinent part, that the City negligently created and maintained a dangerous condition and failed to provide adequate signage, street markings, or signals. According to Rivas, a dangerous condition amounting to a trap existed by placing the marked crosswalk, with only a pedestrian crossing sign, so deceptively close to a second crosswalk up ahead at a traffic light, that it confused motorists into mistakenly believing that the actual crossing was 85 yards ahead at the traffic light.
Rivas also sued Laura Curiel, the driver of the vehicle which struck him, and obtained a default judgment against her. She is not a party to this appeal.
We find that reasonable minds would not differ but would conclude that there was no dangerous condition from any motorist confusion attributable to the placement and design of the crosswalk and its traffic control environs. Thus, the trial court properly sustained the demurrer and entered judgment in favor of the City.
FACTUAL AND PROCEDURAL SUMMARY
As alleged in the second amended complaint, on March 31, 2004, at approximately 9:00 p.m., in the City of South Gate, Laura Curiel drove her 1988 Toyota Corolla down Tweedy Blvd. near the intersection of Washington Ave. She negligently drove at an unsafe speed and failed to observe and to yield the right of way to Rivas, a pedestrian crossing the street at a marked crosswalk. A car adjacent to Curiels car and traveling in the same direction came to a complete stop just before the crosswalk. However, Curiel drove her car through the crosswalk and struck Rivas, seriously injuring Rivas as he walked across the street.
Washington Ave. ends at a T-intersection with Tweedy Blvd. The pedestrian crosswalk across Tweedy Blvd. leads directly to a public park. Near the crosswalk at the T-intersection was an unlighted pedestrian crossing sign. The sign near the crosswalk depicted a pedestrian figure on a diamond-shaped, orange-colored background. Eighty-five yards further down Tweedy Blvd. in the direction in which Curiel was driving her car was another crosswalk. This second crosswalk had no pedestrian crossing sign, but it did have a traffic signal.
The trial court sustained the Citys demurrer to the second amended complaint without leave to amend because of the failure to "state facts sufficient to constitute a cause of action." (Code Civ. Proc., § 430.10, subd. (e).) The trial court reasoned as follows: (1) because the crosswalk where Rivas was injured was "not a dangerous condition," the City had no duty to warn of it; and (2) the "concealed trap" exception to the rule of governmental immunity did not apply because there was no "peculiar condition" that made it dangerous to cross at the crosswalk. Since reasonable minds could not differ as to the lack of any dangerous condition, and it was not reasonably possible from the nature of the defect in the pleading that it could be cured by amendment, the trial court sustained the demurrer without leave to amend.
The court then entered an order dismissing the City from the action, which constituted a judgment in favor of the City. (Code Civ. Proc., § 581d.)
DISCUSSION
I. The standard of review following a successful demurrer.
A demurrer tests the legal sufficiency of the complaint. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo; i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125; Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 43.)
We deem true all material facts properly pled (Serrano v. Priest (1971) 5 Cal.3d 584, 591) and those facts that may be implied or inferred from those expressly alleged (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403), as well as any facts properly judicially noticed (Hernandez v. City of Pomona, supra, 49 Cal.App.4th at p. 1497). A reviewing court gives the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 807.) However, we will not assume the truth of contentions, deductions, or conclusions of fact or law and may disregard allegations that are contrary to law. (Moore v. Regents of University of California, supra, 51 Cal.3d at p. 125; Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955.)
While a decision to sustain or overrule a demurrer is subject to de novo review on appeal, a grant or denial of leave to amend calls for an exercise of discretion on the part of the trial court. (Hendy v. Losse (1991) 54 Cal.3d 723, 742; Hernandez v. City of Pomona, supra, 49 Cal.App.4th at p. 1497.) Denial of leave to amend is reviewed for abuse of discretion. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) The trial court abuses its discretion in denying leave to amend only if the plaintiff shows a reasonable possibility of curing any defect by amendment. (Ibid.)
Guided by these principles, we now turn to whether the second amended complaint was adequate and should have survived the demurrer.
II. As a matter of law, Rivas failed to allege facts sufficient to establish the existence of a dangerous condition at the crosswalk.
To properly plead a claim against a governmental entity, the pleading may not rely on generalized allegations, but must specifically identify the condition that constitutes a dangerous condition. (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.) Although the existence of a dangerous condition is usually a question of fact, it may be resolved as a question of law if reasonable minds can come to but one conclusion based on the facts as pled. (Id. at p. 440.)
A plaintiff seeking to establish tort liability against a governmental entity must allege facts in its pleading sufficiently detailed and specific to support each of the statutory elements of liability. (See Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 96.) Pursuant to Government Code section 835, "[A] public entity is liable for injury caused by a dangerous condition of its property 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] that [the public entity had notice and sufficient time to take measures to protect against the dangerous condition]." (See County of Ventura v. City of Camarillo (1978) 80 Cal.App.3d 1019, 1025.)
The requisite "dangerous condition" for the purpose of establishing governmental tort liability is defined 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." (Gov. Code, § 830, subd. (a); see Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 30-31.) Here, the facts pled simply do not establish the existence of a dangerous condition.
As pled in the second amended complaint, Rivas alleged that the placement of the crosswalk, and its corresponding pedestrian crossing sign, 85 yards from a traffic signal with a second crosswalk, misled motorists as to the location of the first crosswalk, thereby creating motorist confusion and an increased risk of a danger. However, the assertions of motorist confusion and an increased risk of danger are pure speculation and surmise, which lack any logical or rational factual underpinnings. In essence, Rivas theorizes in a conclusory fashion that a motorist driving along Tweedy Blvd. would not see the marked crosswalk, would not see the pedestrian crossing sign, and would not see a pedestrian such as Rivas crossing the street. Rather, Rivas apparently assumes that the motorist would focus attention 85 yards down the street to the traffic light and be fooled into believing that the only crosswalk was at the traffic light 85 yards away. As the City aptly notes, simply stating Rivass claim is to argue against it.
We also note, as Rivas alleged in his negligence cause of action against the motorist whose vehicle struck him, that a second motorist in "the adjacent lane traveling in the same direction had come to a complete stop prior to her reaching the crosswalk." Thus, since a second motorist apparently had no difficulty seeing the crosswalk and stopping, it arguably confirms that the configuration of traffic controls and signs in the general area did not lead to any motorist confusion at the crosswalk.
Moreover, there was nothing out of the ordinary about the crosswalk where Rivas was injured or any visual obstructions which would establish a dangerous condition. For example, Rivas did not allege any specific facts describing any particular trees, shrubbery, shadows or insufficient lighting concealing either the pedestrian crossing sign or the crosswalk itself. (Compare Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1537-1538 [dangerous condition can be due not only to the absence of regulatory traffic devices, but also because of vision limitations from pillars and shadows].) Rivass general assertions of the alleged failure to "upkeep" or "maintain" foliage and lighting were at best vague and inadequate "`conclusions of fact." (Adelman v. Associated Internat. Ins. Co. (2001) 90 Cal.App.4th 352, 359.) Nor is there any basis for the assertion by Rivas that the crosswalk here was a "trap" for the unwary motorist and thus a dangerous condition. (Compare Bakity v. County of Riverside, supra, 12 Cal.App.3d at pp. 29, 31 [liability for maintaining a dangerous condition constituting "a trap," as several trees obstructed driver vision and no "stop ahead" warning signs existed].)
Moritz v. City of Santa Clara (1970) 8 Cal.App.3d 573 (Moritz), is instructive on the "trap" issue. In Moritz, the plaintiffs were struck by a vehicle while they crossed the street in a crosswalk. Although a nonparty driver in one lane of traffic yielded to the plaintiffs in the crosswalk, defendant failed to yield and struck the plaintiffs. The plaintiffs in Moritz alleged that the marked crosswalk was dangerous and a concealed trap because it was unlighted, unguarded, not patrolled and without proper signs or warning devices. (Id. at p. 575.)
In affirming the judgment dismissing the claim, the Court of Appeal in Moritz stated: "Nor was it required of the city, under section 830.8 of the Government Code, that a warning of a `dangerous condition be given by a signal, sign, marking or device. This is required by that section only if a dangerous condition exists within statutory definition. [Citation.] . . . Pedestrians using the crosswalk would do so rightfully and without danger except that which would arise from a plain violation of law by the driver of the vehicle." (Id. at p. 576, italics added.) Such was the situation here, too.
Government Code section 830.8 provides, in pertinent part, as follows: "Neither a public entity nor a public employee is liable . . . for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity . . . from liability for injury proximately caused by such failure if the signal, sign, marking or device . . . was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not be anticipated by, a person using due care."
Accordingly, we reject Rivass unfounded speculation about conditions somehow creating a trap for the unwary motorist, or supposed motorist confusion from the presence of a traffic signal 85 yards down the road. Because reasonable minds could not come to a different conclusion about the absence of a dangerous condition, as a matter of law the causes of action against the City in the second amended complaint failed to allege facts sufficient to establish the requisite dangerous condition at the crosswalk. (See Brenner v. City of El Cajon, supra, 113 Cal.App.4th at pp. 439-440.)
III. The trial court did not abuse its broad discretion in denying Rivas an opportunity to amend the complaint to plead sufficient facts.
Rivas attached to his opening brief as an "exhibit" a proposed third amended complaint which contains a six-page rewording of a cause of action against the City. However, there is no reference in the clerks or reporters transcripts to this proposed third amended complaint as an exhibit before the trial court, and thus it is not properly part of the opening brief. (Cal. Rules of Court, rule 14(d).) Nonetheless, we generously disregard this violation of appellate procedures (Cal. Rules of Court, rule 14(e)(2)(C)) and address the merits of the issue.
We find nothing in the proposed third amended complaint which sufficiently states additional facts that could support a cause of action based upon the creation of an alleged dangerous condition. For example, Rivas belatedly asserts that "numerous studies conducted by reputable traffic engineers, for over 30 years, have shown that marked and uncontrolled crosswalks have twice as many pedestrian/auto collisions than uncontrolled crosswalks that have no markings or any traffic controls whatsoever." The crosswalk at issue in the present case is in the former category, as it was apparently marked with paint and by a pedestrian crossing sign, but not controlled by a traffic light.
However, since the traffic engineering studies relied upon by Rivas establish that "uncontrolled crosswalks that have no markings or any traffic controls whatsoever" are safer, these studies do not advance and run counter to the argument by Rivas that the City created a dangerous condition by failing to provide additional and more visible warning signs and markings at the crosswalk. Thus, the comparative traffic engineering studies are simply inadequate to establish the requisite dangerous condition and to justify leave to further amend the complaint.
Arguably, it is also counter-intuitive that a crosswalk with markings (such as painted lines and a sign) would have twice as many accidents as an uncontrolled crosswalk with no markings or traffic controls to caution drivers about the pedestrian crosswalk. To the extent Rivas intended in his proposed third amended complaint to convey something different, the language used fails to do so.
Nor is the requisite dangerous condition established by language in the proposed third amended complaint alleging that the City knew of "at least two prior pedestrian/auto collisions, at night at the subject crosswalk" and thus had knowledge of the dangerous condition at that crosswalk. The allegation is deficient because there are no specific details as to the comparative volume of traffic, so it is unknown whether the two prior accidents are unusual or excessive for that particular location such as to alert the City to the alleged dangerousness of the condition. (See Compton v. City of Santee (1993) 12 Cal.App.4th 591, 599-600.)
Other language in the proposed third amended complaint just reiterates with more words the previously rejected theory of a danger from supposed confusion by the placement of the crosswalk with a pedestrian crossing sign 85 yards before another crosswalk at a traffic light. The additional wording does nothing to cure the fundamental defect of the pleading.
Accordingly, based on the record (as well as the proposed third amended complaint contained in the opening brief), Rivas has failed to demonstrate any reasonable probability that the second amended complaint could be corrected, cured, or amended to sufficiently state a cause of action against the City for any dangerous condition of public property. The trial court did not abuse its broad discretion in denying leave to amend.
DISPOSITION
The judgment is affirmed.
We concur:
DOI TODD, J.
CHAVEZ, J.