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Schaeffer v. City of Lancaster

California Court of Appeals, Second District, Eighth Division
Apr 13, 2009
No. B203178 (Cal. Ct. App. Apr. 13, 2009)

Opinion

NOT TO BE PUBLISHED

APPEALS from judgments of the Superior Court of Los Angeles County. No. MC016955 Carlos Baker, Judge.

Evan D. Marshall; Law Offices of Wayne McClean and Wayne McClean for Plaintiffs and Appellants.

Christopher Ramsey and Lee W. Dayton for Defendant and Respondent City of Lancaster.

Bradley & Gmelich, Barry A. Bradley, Lena J. Marderosian and Arnold S. Levine for Defendant and Respondent City of Palmdale.


BAUER., J.

Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

In a personal injury action initiated by Robert Schaefer (Schaefer) and his wife Mindy Schaefer, separate motions for summary judgment were granted in favor of two defendants, the City of Lancaster (Lancaster) and the City of Palmdale (Palmdale). For reasons discussed below, we have concluded that these motions should have been denied. We therefore reverse the granting of each motion.

BACKGROUND

On the morning of January 13, 2005, Schaefer was driving westbound on Avenue M in Lancaster at a location where the westbound lanes of Avenue M lie within Lancaster and the eastbound lanes are in Palmdale. Defendant Robert Lee Peterson (Peterson) was then driving eastbound along Avenue M. Peterson lost control of his vehicle, which spun across the centerline of the roadway and collided head-on into Schaefer’s vehicle, injuring Schaefer.

This litigation commenced with a complaint setting forth three causes of action. Although they are not titled, it appears that these three causes of action are intended to be (1) a simple negligence claim by both plaintiffs against Peterson, Lancaster, Palmdale, and the County of Los Angeles; (2) both plaintiffs’ claim of a dangerous condition of public property, alleged against the governmental entities; and (3) Misty Schaefer’s claim for loss of consortium, alleged against all defendants.

The claims against Lancaster and Palmdale are founded upon allegations that this accident occurred in conditions of “water accumulation and overflow which turned to ice” and that “the subject roadway, and the areas adjacent thereto, was in a dangerous and hazardous condition” caused by “the absence of an adequate drainage system for the subject roadway,” which “led to the presence of a layer of ice that had formed due to freezing temperatures after an accumulation of rain water.” Plaintiffs further allege that the cities failed to remedy this situation or to warn of its danger.

In one sense, Lancaster’s motion for summary judgment relied simply upon the fact that the ice upon which Peterson allegedly skidded was in Palmdale and that the plaintiffs cannot establish that any property within Lancaster presented a dangerous condition. The simplicity of this motion is reflected in the fact that its original Separate Statement of Undisputed Material Facts set forth only eight facts, and these were essentially unchallenged by the plaintiffs (except for a question about the puzzling grammar of one “fact”). But Lancaster’s motion morphed over time into something much larger. The final paragraph of argument in its supporting points and authorities sought to incorporate the entirety of Palmdale’s more comprehensive motion and “all supporting undisputed material facts and evidence in support thereof....” This two-in-one approach was repeated in Lancaster’s reply, where it again incorporated all of Palmdale’s motion. Even then, this motion had not reached full growth. A Supplemental Separate Statement of Undisputed Material Facts, filed more than three months after the original motion, now tendered 12 new and different material facts. Lancaster there sought to show that it had no prior knowledge of any hazard at the location of this accident and that it had a regular practice of properly dealing with storm and flood conditions within the city.

Palmdale’s motion sought to show that the plaintiffs could not establish the elements of a claim based upon a dangerous condition of public property. Palmdale argued that the site was not in a dangerous condition, that the city had no notice of any such condition, that the plaintiffs’ injuries were not caused by any such condition, and that Schaefer did not use the requisite level of care in this incident. Palmdale further argued that the “weather defense” codified in Government Code section 831 immunized it from liability for this claim.

Timely opposition and reply briefs and extensive evidentiary objections were filed by the parties prior to the February 13, 2007 date originally calendared for the hearing. After two continuances to permit the plaintiffs to conduct additional discovery and to afford the court further time to review all the papers, the matter was argued at length on June 12, 2007. After taking the matter under submission, the court granted each motion, executed proposed statements of decision prepared and submitted by counsel for each of the defendants, and entered judgment for Lancaster and Palmdale. This appeal followed.

“We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

A motion for summary judgment is a challenging undertaking for all hands. Notice and timing requirements are unique and relatively inflexible; “issues” for summary adjudication are limited; the necessary separate statement of undisputed facts demands precision, and the required format has changed over the years; evidence must be presented in a timely and competent manner; objections and evidentiary rulings present arcane issues that generate constant discussion but little agreement; and the requisite order mandated by Code of Civil Procedure section 437c, subdivision (g) eludes many. This case puts all of these hazards on display.

EVIDENTIARY RULINGS

Evidentiary rulings proved to be a most troublesome feature of this case for all concerned. A variety of expert and lay witnesses tendered their opinions and observations about weather conditions, road conditions, and other circumstances pertinent to this accident. After an extensive oral argument on the merits of these motions, the court indicated its intention to rule on the motions and then invite each prevailing party to prepare and submit an appropriate statement of decision. Counsel resisted this suggestion. Palmdale’s attorney expressed her concern: “With all due respect, Your Honor, I think the court has to make the rulings on the evidentiary objections....” Lancaster’s attorney opined: “I think the issue that you need to be concerned with, Your Honor, is to make a ruling on whether or not our motions are to be denied or sustained, but prior to that, because the motions depend upon whether or not the evidence supported or the evidence presented in support of those motions or in opposition -- in support of the oppositions to those motions is admissible, we have to have evidentiary rulings so that we know what it is that --.” The court persisted. It expressed concern about the “two weeks” that might be consumed “studying the whole thing and going over each item and ruling on it,” and it instead reversed the sequence requested by counsel. The court advised that it would rule on the motions first and then invite the prevailing counsel to prepare written statements of decision, which would incorporate proposed rulings on the evidentiary objections and should be designed to prevail on appeal. Counsel persisted, as courteously as they could, but ultimately accepted the court’s plan, with the understanding that no evidentiary objections would be deemed waived by virtue of the fact that there would be no rulings prior to the decisions on the merits.

The court ultimately rendered its decision granting the motions of both Lancaster and Palmdale. Counsel for these defendants then submitted proposed statements of decision reflecting the granting of their respective motions and the sustaining, without exception, of each of their evidentiary objections.

The plaintiffs’ motion for new trial was denied. The evidentiary rulings were a major topic at the September 20, 2007 hearing on this motion. Counsel for Palmdale expressed her view about those rulings: “The court ruled in our favor. We both prepared statements of decision, and based on the court’s ruling in our favor, made the proposed evidentiary rulings that the court would have to make in order to come up with the rulings the court did.” Counsel for Lancaster agreed: “I will adopt everything that Miss Marderosian stated....” In essence, counsel have acknowledged that these evidentiary rulings were necessary to their success, that they could not have prevailed without them.

Against that background, it is now necessary to review those objections that were originally interposed by the defendants, with favorable rulings ultimately incorporated by the defendants into the court’s written order. In short, those rulings cannot withstand this scrutiny.

Three witnesses who submitted declarations in opposition to these motions were firemen who all worked at the same Air Force Fire Department facility in Palmdale. Nicholas Sueverkruepp, Tim Gregory, and Michael Lovelady responded to the subject accident on the morning of January 13, 2005. Each declared that he then and there observed that the street at that location was slick with ice and that he experienced very slippery conditions while walking over that surface. These declarants also reported that they had worked in that area for periods ranging from seven to 23 years, that they had observed “water... pools on Avenue M in the vicinity of the accident” “on many occasions” and that the “ pool was covered with ice, and the roadway slick with ice which appeared to have formed from the spray, splashing and/or tracking produced by vehicles passing through the pool.” Each also stated that “[f]reezing conditions are not unusual in the winter in the... area” and that “[t]his is well known to anyone with long experience in the area.” These personal observations of the conditions on the day in question and of similar conditions there on other days are surely relevant to the question of whether or not the cities had advance notice of the possibility that a dangerous condition might occur there.

A similar summary could describe the handling of the declaration of Dale Dunlap, a registered civil engineer, whose observations and opinions were tendered by the plaintiffs on the subject of the road construction, defects, and maintenance at the site of this accident. Personal observations (e.g., “the asphalt concrete shows deterioration” and “[t]he cracking and patches have a rough surface”) and permissible opinions within the scope of the witness’s education and experience (e.g., “rough surface... reduces the coefficient of friction” and “[d]uring cold weather, this water can freeze”) are surely admissible, but they were swept into the evidentiary dustbin by the broad objections and over-reaching statements of decision prepared by the cities’ counsel. If these rulings were essential to the granting of these motions, as counsel have stated, then the motions must be denied.

Yet, both defendants objected to critical portions of this testimony; they then facilitated the court’s sustaining of those objections; and they ultimately acknowledged that each of these rulings was essential to the granting of their motions. Interestingly, at the outset of these hearings, before the court invited the cities’ attorneys to craft rulings on their own objections and then signed them, the court opined that “All evidentiary objections... are overruled as they go to the weight of the evidence rather than the admissibility.” This was an apt statement.

OTHER DEFECTS

The following are among the other obstacles to the granting of these motions:

-Certain defenses referenced in the argument on these motions were not presented in the written papers (e.g., design immunity).

-While issues were listed for possible summary adjudication, no separate statement identified a discrete subset of undisputed material facts pertinent to any such issue. (See California Rules of Court, rule 3.1350.)

-Late tender of evidence in support of these motions came well after filing of the motions and deprived the plaintiffs of the statutory time to respond thereto. Plaintiffs appropriately objected to such material. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 312-13.)

-The “weather immunity” of Government Code section 831 would be inapplicable if, as the plaintiffs’ evidence suggests, the conditions causing this accident were aggravated or contributed to by the condition of the public property. (See Erfurt v. State of California (1983) 141 Cal.App.3d 837, 846).

-Lancaster’s argument about not being the site of the ice upon which Peterson skidded is unavailing. First, Lancaster’s motion falls with Palmdale’s, since it incorporated all of the latter’s motion within its own. Second, the law does not inevitably excuse a landowner from responsibility for failing to guard against a known risk originating on adjacent property. The extent of Lancaster’s awareness of, and ability to guard against, the flooding and icing in Palmdale is a question for the trier of fact.

-This court surely misunderstands the defendants to suggest that Schaefer’s speed contributed to this accident and should deprive the plaintiffs of recovery. But this is what Palmdale says at page 15, lines 12-14 of its motion: “had Plaintiff... slowed down to a safe speed for the condition of the road, the icy conditions of the road, in and of itself would not constitute a dangerous condition.” What does this mean? Isn’t it equally logical to say that Schaefer contributed to this accident by not driving at 120 miles per hour, because he then would have passed the scene before Peterson’s truck flew across the roadway in his direction?

DISPOSITION

The granting of each of these motions for summary judgment is reversed and the matter remanded to the trial court with directions to enter new orders denying the motions for summary judgment. Appellants shall recover their costs incurred in this appeal.

We concur: RUBIN, Acting P. J. BIGELOW, J.


Summaries of

Schaeffer v. City of Lancaster

California Court of Appeals, Second District, Eighth Division
Apr 13, 2009
No. B203178 (Cal. Ct. App. Apr. 13, 2009)
Case details for

Schaeffer v. City of Lancaster

Case Details

Full title:ROBERT SCHAEFER et al., Plaintiffs and Appellants, v. CITY OF LANCASTER et…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Apr 13, 2009

Citations

No. B203178 (Cal. Ct. App. Apr. 13, 2009)