Filed 10/2/13 San Roman v. City of El Monte CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

JONATHAN SAN ROMAN,                                                     B237543

                   Plaintiff and Appellant,                             (Los Angeles County
                                                                        Super. Ct. No. KC058976)
         v.

CITY OF EL MONTE,

                   Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Salvatore T. Sirna, Judge. Affirmed.


         Taylor & Ring and John C. Taylor; Esner, Chang & Boyer and Holly N. Boyer for
Plaintiff and Appellant.


         Law Offices of Leech & Associates and D. Wayne Leech for Defendant and
Respondent.
       Jonathan San Roman (appellant) appeals from a final judgment entered against
him after the trial court granted the City of El Monte’s (the City) motion for summary
judgment on appellant’s cause of action against the City for dangerous condition of
public property. We affirm.
                                         CONTENTIONS
       Appellant contends that the trial court erred in granting summary judgment
because a reasonable juror could conclude that the conditions at the crosswalk where
appellant was injured created a substantial risk of injury. Appellant further contends that
the immunities provided under Government Code sections 830.4 and 830.81 do not shield
the City from liability in this case.2
                               FACTUAL BACKGROUND
The accident
       On September 20, 2009, at 8:15 p.m., Jimmy Oscar Banuelos (Banuelos) was
driving westbound on Valley Boulevard towards the intersection of Meeker Avenue.
Banuelos was traveling in the No. 1 lane. Appellant was walking southbound, crossing
Valley Boulevard at its intersection with Meeker Avenue, after having activated a
cautionary pedestrian signal in place at the intersection. It was dark outside.
       The car traveling westbound in the No. 2 lane came to a stop before appellant
stepped into the crosswalk, to allow appellant and his friends to walk across. Appellant


1      All further statutory references are to the Government Code unless otherwise
indicated.

2       The City has included in its respondent’s brief several arguments surrounding the
trial court’s alleged error in admitting appellant’s expert’s report into evidence. Under
California Rules of Court, rule 8.108(g), respondent was required to file a cross-appeal
within 20 days after the superior court served notice of the first appeal. No such cross-
appeal is contained in the record of this case, therefore we have no jurisdiction to
consider respondent’s claims of error. (Cal. Rules of Court, rule 8.108(g)(1) [must file
notice of cross-appeal within 20 days of clerk’s service of notice of appeal from same
judgment]; Green Tree Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66
Cal.2d 782 [the timely filing of a notice of appeal, or cross-appeal, is a jurisdictional
matter].)

                                              2
remembers seeing some embedded lights flashing in the street after he pushed the button
to cross.
       Banuelos’s car was traveling at about 30 to 35 mph. After crossing lane No. 2 in
front of the stopped car, appellant walked about two steps into the No. 1 lane when he
was struck by Banuelos’s car.
       Appellant did not see the car slow or attempt to stop to avoid the accident.
Appellant was unaware of anything that obstructed Banuelos from seeing appellant
before the accident.
The intersection
       Valley Boulevard runs in a general east-west direction and Meeker Avenue runs in
a general north-south direction in the City. Valley Boulevard is a major thoroughfare
with a speed limit in the area of Meeker Avenue posted at 35 mph. Meeker Avenue
terminates approximately one block north of Valley Boulevard. Traffic on Meeker
Avenue is controlled by stop signs at Valley Boulevard, but there is no traffic control on
Valley Boulevard at Meeker Avenue. At the intersection of Meeker Avenue, Valley
Boulevard is a four lane, approximately 85-foot wide street.
       There is a pedestrian crosswalk on the western portion of Meeker Avenue across
Valley Boulevard. There are also pedestrian crosswalk signs and signals on both the
north sidewalk and south sidewalk of Valley Boulevard at Meeker Avenue. The
pedestrian crossing signals, when activated by a push button, flash an amber light in the
west and east directions. The signals are also designed to activate flashing lights which
are embedded into the street along both crosswalk lines going across Valley Boulevard.
There are eight embedded lights on the west side of the crosswalk and eight embedded
lights on the east side of the crosswalk.
       The word “LOOK” in both English and Spanish, with arrows pointing east and
west, were painted in the crosswalk with white paint just off of the north and south curbs
of Valley Boulevard, to alert pedestrians before entering the crosswalk.
       Approximately 166 feet east of the west curb of Meeker Avenue, on the north side
of Valley Boulevard, was another pedestrian crossing sign. The two pedestrian signs on


                                             3
the north and south sides of Valley Boulevard were diamond-shaped with a fluorescent
yellow-green background. The pedestrian crossing signs, pedestrian crossing signal, and
painted crosswalk were in place to warn motorists traveling in both directions on Valley
Boulevard that pedestrians might be ahead.
        In 2004, the City participated in a pilot project to install the embedded lights in the
asphalt along the crosswalk on Valley Boulevard at the intersection of Meeker Avenue.
The City received a grant from the California Office of Traffic Safety for the purchase of
the in-roadway LED strobe lighting and flashing beacons. This was an experimental
project; embedded lights are not a traffic engineering standard nor are they required in
California.
        For the first four years after the embedded strobe lights and beacon were installed
in 2004, the City’s public maintenance division conducted weekly inspections of the
lights and repaired them immediately if they were not operating correctly. The City’s
inspections stopped in 2009. At that time the City knew that some of the lights were not
working and that others would soon stop working.
Post-accident investigation
        Officer Rodriguez inspected the pedestrian crossing signals at Valley Boulevard
and Meeker Avenue on the evening of the accident and noted the large amber flashing
lights on both of the pedestrian signal poles on the north and south side of Valley
Boulevard were operating properly when the button was pushed. Some of the lights in
the diamond-shaped pedestrian crosswalk sign that faced eastbound that were burned out.
Those lights were not flashing inside of the sign, but other lights were flashing inside the
sign.
        Officer Rodriguez also inspected the 16 flashing lights embedded in the street that
run along both lines of the crosswalk. There are eight embedded lights on the west
portion of the crosswalk and eight embedded flashing lights on the east portion of the
crosswalk. Out of the 16 embedded light fixtures, two were operational and flashing
when the button was pushed. The two that were working were on the west side of the
crosswalk approximately in the middle of the street.


                                               4
Accident history
       The City had a history of one other incident involving a pedestrian and an
automobile in the crosswalk at Valley Boulevard and Meeker Avenue between 1996 and
2009. The date of the incident was November 20, 2000.3
                               PROCEDURAL HISTORY
       Appellant filed a complaint for damages against Banuelos and the City on June 17,
2010, and a first amended complaint (FAC) against the same defendants on October 7,
2010. The FAC alleged a cause of action for negligence against all defendants, and a
cause of action for dangerous condition of public property against the City. The trial
court sustained the City’s demurrer to the negligence cause of action, leaving only the
cause of action for dangerous condition of public property against the City.
       On April 22, 2011, the City filed a motion for summary judgment. The City
argued:
       1. The condition of public property where appellant was struck by a motorist was
not in a dangerous condition as a matter of law because the failure to have embedded
lights in a crosswalk is not a dangerous condition of public property as a matter of law;
       2. The City was entitled to immunity pursuant to section 830.4, which provides
that a condition is not a dangerous condition merely because of the failure to provide
regulatory traffic signals, stop signs, yield right-of-way signs, speed restriction signs, or
distinctive roadway markings as described in section 21460 of the Vehicle Code;
       3. The City is entitled to immunity pursuant to section 830.8 in that a condition is
not a dangerous condition merely because of the failure to provide traffic or warning
signals, signs, markings or devices described in the Vehicle Code; and
       4. The undisputed evidence shows that no dangerous condition of public property
caused the accident.



3       The City does not maintain any traffic accident reports before April 17, 1996, for
the intersection at issue. The City has a policy of purging traffic accident reports older
than 10 years.

                                              5
       Appellant opposed the motion for summary judgment alleging that the intersection
was dangerous at the time of his accident because the City had stopped maintaining the
16 in-pavement flashing warning lights that were installed along the crosswalk.
Appellant explained that five years prior to the accident, the City had installed in-
pavement flashers and repaired them immediately if they were not operating correctly.
However, the City stopped maintaining the lights a few months before the accident.
Thus, appellant argued, the night of the accident, Banuelos did not see any flashing lights,
did not see appellant, and struck him in the middle of the crosswalk. Citing Huffman v.
City of Poway (2000) 84 Cal.App.4th 975, 991 (Huffman), Zelig v. County of Los Angeles
(2002) 27 Cal.4th 1112 (Zelig), 1133, and Chowdhury v. City of Los Angeles (1995) 38
Cal.App.4th 1187, 1194 (Chowdhury), appellant asserted that whether a given set of
circumstances creates a dangerous condition is usually a question of fact. Appellant
explained that this only becomes a question of law when reasonable minds can come to
only one conclusion. (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701.) Appellant
claims the facts here, along with the opinion of an experienced traffic engineer,
unquestionably permit more than one conclusion.
       Appellant submitted a declaration of Harry Kreuper, a civil and traffic engineer,
who opined that the City’s failure to maintain the flashing lights was a substantial factor
in causing the accident. Kreuper opined that flashing lights provide for a safer
intersection for pedestrians when they are properly maintained, aid visibility and alert
drivers that there are pedestrians in the crosswalk. They are especially beneficial at night.
       Appellant argued that the defective crosswalk created a substantial risk of injury
when used with due care in a forseeable manner, as defined in section 830, and that the
City failed to present evidence that the defect was trivial. Appellant contended that the
damaged, defective and deteriorating lights created a trap for drivers and pedestrians who
were using the crosswalk with due care and reasonably relied on the lights to work.
Appellant also argued that the accident history of the intersection does not prove that the
property was not in a dangerous condition, and that the City was not absolved from
liability by third party negligence or sections 830.4 and 830.8.


                                              6
       The City filed a reply brief along with evidentiary objections.
       The summary judgment motion was heard on October 7, 2011. Following the
hearing, the trial court granted the City’s motion. The court concluded that defendant
met its initial burden of demonstrating that there was no condition of the crosswalk which
created a substantial risk of injury, as distinguished from a minor, trivial or insignificant
condition, when the crosswalk was used with due care. The court cited Cerna v. City of
Oakland (2008) 161 Cal.App.4th 1340, 1350-1352 (Cerna), which held that a crosswalk
that lacked crossing guards and cautionary signs and signals, including no blinking lights
along the parallel painted lines of the crosswalk, was not dangerous as a matter of law.
Relying on Cerna, the court concluded that no reasonable juror could conclude that the
lack of functioning flashing lights in a crosswalk created or increased the risk of harm to
a pedestrian at the intersection. Without a foundational showing that the intersection was
a dangerous condition, the court concluded, evidence that properly working flashing
lights or supplemental warnings would have prevented the accident is not relevant, citing
Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 442-443.
       Final judgment was entered on November 3, 2011. Appellant filed his notice of
appeal on November 22, 2011.
                                       DISCUSSION
I. Standard of review
       Summary judgment is granted when a moving party establishes the right to entry
of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant
moving for summary judgment bears the initial burden of proving that there is no merit to
a cause of action by showing that one or more elements of the cause of action cannot be
established or that there is a complete defense to that cause of action. (Code Civ. Proc.,
437c, subd. (p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.)
Once the defendant has made such a showing, the burden shifts to the plaintiff to show
that a triable issue of one or more material facts exists as to that cause of action or as to a
defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
849.) If the plaintiff does not make such a showing, summary judgment in favor of the


                                               7
defendant is appropriate. In order to obtain a summary judgment, “all that the defendant
need do is to show that the plaintiff cannot establish at least one element of the cause of
action.” (Id. at p. 853.)
       We review the trial court’s grant of summary judgment de novo and decide
independently whether the facts not subject to triable dispute warrant judgment for the
moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348;
Code Civ. Proc., § 437c, subd. (c).)
II. Dangerous condition of public property
       A “dangerous condition” 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 or adjacent property is used with due care in a manner in which it is
reasonably foreseeable that it will be used.” (§ 830, subd. (a).) A public entity’s liability
for a dangerous condition of its property is governed by section 835, which provides:
               “Except as provided by statute, a public entity is liable for injury
       caused by a dangerous condition of its property if the plaintiff establishes
       that the property was in a dangerous condition at the time of the injury, that
       the injury was proximately caused by the dangerous condition, that the
       dangerous condition created a reasonably foreseeable risk of the kind of
       injury which was incurred, and that either:

              “(a) A negligent or wrongful act or omission of an employee of the
       public entity within the scope of his employment created the dangerous
       condition; or

              “(b) The 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.”

       Thus, to successfully prove a dangerous condition of public property within the
meaning of section 830, a plaintiff must prove that the condition of the public property
created a substantial risk when used with due care in a foreseeable manner. “The
existence of a dangerous condition ordinarily is a question of fact, but the issue may be
resolved as a matter of law if reasonable minds can come to only one conclusion.



                                              8
[Citation.]” (Zelig, supra, 27 Cal.4th at p. 1133.) Public entities are not liable for
injuries attributable to an unforeseeable use of the property. (§ 830, subd. (a).)
       In addition, there is no liability for injury caused by risks of a “minor, trivial or
insignificant” nature. (§§ 830, subd. (a), 830.2; Huffman, supra, 84 Cal.App.4th at p.
991.) Section 830.2 provides:
               “A condition is not a dangerous condition within the meaning of this
       chapter if the trial or appellate court, viewing the evidence most favorably
       to the plaintiff, determines as a matter of law that the risk created by the
       condition was of such a minor, trivial or insignificant nature in view of the
       surrounding circumstances that no reasonable person would conclude that
       the condition created a substantial risk of injury when such property or
       adjacent property was used with due care in a manner in which it was
       reasonably foreseeable that it would be used.”

       Whether a defect in public property is trivial or insignificant under section 830.2
may be decided as a matter of law. (Fielder v. City of Glendale (1977) 71 Cal.App.3d
719, 726-727 (Fielder).) This is to prevent the City from becoming an insurer of public
ways against all defects. (Id. at p. 726.)4
III. Section 830.4 immunity
       Section 830.4 provides immunity for a city’s failure to provide certain street signs
and signals. Section 830.4 reads:
              “A condition is not a dangerous condition within the meaning of this
       chapter merely because of the failure to provide regulatory traffic control
       signals, stop signs, yield right-of-way signs, or speed restriction signs, as
       described by the Vehicle Code, or distinctive roadway markings as
       described in Section 21460 of the Vehicle Code.”

       However, “[i]f an intersection is dangerous because of the failure to provide
warning or regulatory signs and also because of the ‘conjunction of other factors,’ section



4       In Fielder, the court held that a three-fourths inch difference in the level of two
adjoining slabs of sidewalk was trivial as a matter of law. (Fielder, supra, 71 Cal.App.3d
at p. 726.)


                                               9
830.4 is no bar to liability. [Citation.]” (Washington v. City and County of San
Francisco (1990) 219 Cal.App.3d 1531, 1538-1539 (Washington).)
       Section 830.8 provides further immunity. It states:
               “Neither a public entity nor a public employee is liable under this
       chapter 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 or public employee from liability
       for injury proximately caused by such failure if a signal, sign, marking or
       device (other than one described in Section 830.4) 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 have been
       anticipated by, a person exercising due care.”

       Thus, a public entity “loses its limited immunity under section 830.8 and is liable
for injury where its failure to provide traffic regulatory or warnings signals, of a type
other than those described in section 830.4, constitutes a concealed trap for those
exercising due care, assuming the conditions of its liability under section 835 are
otherwise met. [Citation.]” (Washington, supra, 219 Cal.App.3d at pp. 1536-1537.)
IV. No dangerous condition of public property existed as a matter of law
       Appellant took the position that the City’s failure to maintain the embedded lights
at the subject crosswalk created a dangerous condition of public property. Specifically,
appellant argued “that the embedded flashing lights that run alongside the crosswalk and
light up when the cautionary pedestrian signal is activated were not operating and/or
missing and did not flash when the signal was activated at the time of the subject
accident; and that this created a defect in the physical condition of the property and a
dangerous condition of public property and an undiscovered trap which resulted in the
accident.”5

5      In his appellate briefs, appellant has discussed a second purported dangerous
condition: the failure to repaint horizontal markings across the crosswalk. This theory
was not raised during the summary judgment proceedings below. Because this theory
was not fully developed in the trial court, we will not address it. (Johanson
Transportation Service v. Rich Pik’d Rite, Inc. (1985) 164 Cal.App.3d 583, 588 [“an
argument or theory will generally not be considered if raised for the first time on appeal

                                             10
       In its motion for summary judgment, the City argued that the purported defect was
not a dangerous condition as a matter of law, because it did not create a substantial risk of
injury when used with due care in a manner prescribed by law. (§ 830.) Instead, the City
argued, the defect was “of such a minor, trivial or insignificant nature in view of the
surrounding circumstances that no reasonable person would conclude that the condition
created a substantial risk of injury” when such property was used with due care.
(§ 830.2.)
       Both parties have cited case law relevant to the question of whether the
nonfunctional embedded lights can be considered a dangerous condition of public
property. In support of its position that the alleged defect is trivial as a matter of law, the
City cites several cases, discussed below.
       The City first cites Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434
(Brenner). In Brenner, a pedestrian was struck by a car while crossing Chase Avenue
near the intersection of Estes Street in El Cajon. The plaintiff alleged that the area was
heavily traveled by pedestrians due to bus stops, a park, a convenience store and a school
and that the City of El Cajon had failed to take any steps to control traffic or make the
area safer for pedestrians. (Id. at pp. 437-438.) In response to the plaintiff’s allegation of
heavy traffic at the intersection, the court stated: “The second amended complaint
contains no allegation 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 [citations], and Brenner cites no
authority that a dangerous condition exists absent such factors.” (Id. at p. 440, fn.
omitted.) In Brenner, as here, the City argues, there was no unusual condition that
created a substantial risk of injury. The Brenner court concluded that no dangerous
condition existed as a matter of law, affirming the trial court’s dismissal of the case at the
pleading stage. (Id. at pp. 443-444.)



. . . [t]hus, possible theories not fully developed or factually presented to the trial court
cannot create a ‘triable issue’ on appeal”].)

                                              11
       In Cerna, an unlicensed motorist struck six people, killing one and injuring the
others. The pedestrians were a family on their way to a nearby school. The surviving
pedestrians and family members brought an action against the city for the alleged
dangerous condition of the intersection and against the school district for failing to ensure
safe school access. (Cerna, supra, 161 Cal.App.4th at pp. 1344-1345.) The plaintiffs
enumerated seven factors which they alleged created a dangerous condition at the
intersection: (1) the crosswalk was painted white, not yellow; (2) there was no sign
painted in the approaching roadway with the words “‘SLOW--SCHOOL XING’”; (3)
there was no traffic signal; (4) there were no crossing guards; (5) signs warning of the
presence of student pedestrians were either missing or in an incorrect position; (6) the
crosswalk was not painted with diagonal or longitudinal lines; and (7) there were no
blinking lights in the pavement along the parallel painted lines of the crosswalk. (Id. at p.
1348.) The Court of Appeal affirmed the trial court’s grant of summary judgment on the
question of whether a dangerous condition of public property existed at the intersection,
holding that “Whether considered independently or cumulatively, the identified features
of the intersection did not create a dangerous condition.” (Id. at p. 1352.) Under Cerna,
the City argues, the lack of functioning flashing lights at an intersection is not a
dangerous condition of public property as a matter of law.
       Next, the City cites Sun v. City of Oakland (2008) 166 Cal.App.4th 1177 (Sun). In
Sun, a pedestrian was struck by a car and killed while attempting to cross an unmarked
pedestrian crosswalk. Her family sued the City of Oakland, alleging that her death was
caused by the dangerous condition of the intersection where the accident occurred. The
City of Oakland moved for summary judgment, arguing that the intersection was not in a
dangerous condition as a matter of law. The trial court granted the motion, and the Court
of Appeal affirmed. (Id. at pp. 1180-1181.) The crosswalk where the pedestrian tried to
cross had been marked with painted stripes in the past, but it was unmarked at the time of
the accident. One driver approaching the intersection stopped to allow the pedestrian to
cross, but as she emerged from behind the stopped car and into the adjacent lane of
traffic, a car moved into that lane from behind the stopped car and struck her. The


                                              12
plaintiffs’ key allegation regarding a dangerous condition was the City of Oakland’s
failure to re-mark the intersection with painted stripes after having made it more
pedestrian friendly by the installation of “bulb-outs.” (Id. at p. 1184.) The Court of
Appeal agreed that heavy pedestrian traffic alone is not a dangerous condition. In
addition, the court noted: “[A]ppellants do not allege any unusual physical
characteristics about the crosswalk where Ms. Peng was killed, such as any visual
obstructions which would establish a dangerous condition. For example, appellants did
not allege or produce any specific facts describing any particular trees, shrubbery,
shadows or insufficient lighting concealing the presence of pedestrians or the crosswalk
itself.” In the absence of any such obstructions or unusual characteristics, the intersection
did not pose a dangerous condition as a matter of law. (Id. at pp. 1189-1190.)
       The Sun court found it significant that one of the two cars approaching the
intersection did stop for the pedestrian, noting: “Moreover, the motorist who was
traveling in the same direction as Jackson had come to a complete stop prior to
Ms. Peng’s entering the crosswalk. It thus appears that a reasonably careful motorist
would have had no difficulty seeing a pedestrian (or in seeing a car that was stopped for a
pedestrian) and stopping, which further supports the conclusion that the configuration of
the subject crosswalk did not create a substantial risk of injury when used with due care.”
(Sun, supra, 166 Cal.App.4th at p. 1190.) The same can be said of the conditions at the
intersection under scrutiny here, as one car did stop for appellant.
       Finally, the City cites Salas v. Department of Transportation (2011) 198
Cal.App.4th 1058 (Salas). In Salas, a pedestrian was struck by a vehicle while crossing a
marked intersection in the City of Victor. (Id. at pp. 1061-1062.) The plaintiffs brought
suit against Caltrans for wrongful death and related causes of action, alleging that a
dangerous condition of public property existed at the accident location. Their claim was
based on the lack of proper signage, controls or signals; failure to provide safe streets or
highways; failing to design proper signage, controls or signals; failure to have traffic
control devices in place; placing a crosswalk in the location without proper safety
devices; failing to follow recommended standards as to the location of the crosswalk;


                                             13
failing to provide the recommended crosswalk design for the location; and failing to
properly enforce and/or control speed in the area. (Id. at p. 1062.)
       The evidence presented by Caltrans established that the driver encountered two
yellow pedestrian signs as well as a PED XING stencil prior to crossing the intersection
where the accident occurred. Visibility was clear and there were no sight obstructions at
the intersection. (Salas, supra, 198 Cal.App.4th at p. 1063.)
       The Court of Appeal affirmed the trial court’s grant of summary judgment,
finding:
               “From this evidence of a well-marked crosswalk at an intersection
       with clear sight lines where there was no report that a pedestrian had
       previously been involved in an accident, the trial court properly concluded
       that Caltrans made a prima facie showing that no condition of property
       ‘creates a substantial (as distinguished from a minor, trivial or insignificant)
       risk of injury when such property or adjacent property is used with due care
       in a manner in which it is reasonably foreseeable that it will be used.’
       [Citation.]”

(Salas, supra, 198 Cal.Ap.4th at p. 1071.)
       The Salas court further found that the plaintiffs had failed to identify a triable
issue of material fact on this issue. (Salas, supra, 198 Cal.App.4th at p. 1075.)
       The City compares the facts of Salas to the facts before us. As in Salas, the City
argues, the undisputed evidence shows that the crosswalk is located on a straight and
level road; with no curves or sight obstructions for either motorists or pedestrians; no
blind corners, obscured sight lines, elevation variances, or unusual conditions that made
the road unsafe to pedestrians or motorists using due care. Further, as in Salas, there
were two signs notifying the oncoming driver of a pedestrian crosswalk, as well as
painted lines marking the crosswalk. In addition, in the matter before us, there was an
amber flashing light warning the driver that there were pedestrians in the crosswalk.
       Pursuant to the case law described above, the City has set forth a prima facie case
that the subject crosswalk was not a dangerous condition as a matter of law.




                                             14
V. Appellant has failed to show that a triable issue of fact exists
       Appellant emphasizes that the question of whether or not features of public
property create a dangerous condition under section 835 is generally reserved for the trier
of fact. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148
[affirming jury verdict finding that the location of a bus stop was a dangerous condition
of public property where bus patrons had to cross a busy thoroughfare at an uncontrolled
intersection].) Appellant emphasizes that the City abandoned its maintenance of the
embedded lights without notifying local residents or users of the subject crosswalk that
most of the embedded lights were not functioning. Appellant argues that the City thus
“lured” users, including appellant, into a false sense of security in crossing at the
crosswalk.
       Appellant cites numerous cases which, he argues, show that a reasonable juror
could conclude that the conditions at the crosswalk where appellant was injured created a
substantial risk of injury to pedestrians. As set forth below, we find the cases cited by
appellant to be distinguishable.
       Appellant first points to De La Rosa v. City of San Bernardino (1971) 16
Cal.App.3d 739 (De La Rosa), which was an appeal from the trial court’s grant of a
directed verdict for the defendant. The plaintiffs were three individuals riding in a car on
Pepper Street in San Bernardino. Their car collided with a vehicle traveling on Rialto
Avenue after the driver of their car failed to see the stop signs located on Pepper Street at
the intersection of Rialto Avenue. There was evidence that a walnut tree and shrubbery
at the intersection impaired the visibility of the stop sign to such an extent that it was
barely visible during the day and could not be seen by a southbound motorist at night.
There was also evidence that the painted “Stop Ahead” legend on the sidewalk was
faded. The Court of Appeal reversed the grant of directed verdict, holding that “although
a public entity is not liable for failure to install traffic signs or signals [citations], when it
undertakes to do so and invites public reliance upon them, it may be held liable for
creating a dangerous condition in so doing. [Citations.]” (Id. at p. 746.) The court found



                                                15
that reasonable minds could differ as to whether the location of the stop sign created a
dangerous condition:
              “In the present case one of the crucial factual issues was whether the
       position of the stop sign constituted a dangerous condition. From the
       evidence heretofore summarized, it is manifest that reasonable minds could
       well differ on that issue.”

(De La Rosa, supra, 16 Cal.App.3d at p. 746.)
       The matter before us does not involve a hidden or obstructed traffic sign. In
contrast to De La Rosa, appellant has not argued that the pedestrian crossing signs, or the
amber flashing light, were positioned in such a manner as to be barely visible. Instead,
those signs were apparent to a driver using due care. The De La Rosa case does not
convince us that summary judgment was improper here.
       Next, appellant cites Teall v. Cudahy (1963) 60 Cal.2d 431 (Teall). In Teall, a
seven-year-old child was hit by a truck when crossing an intersection. The plaintiff
argued that the signal designed to guide pedestrians across the crosswalk in question was
not visible from where the child commenced crossing. Instead, the only signal visible to
her was one that indicated it was safe to cross. (Id. at p. 433.) The plaintiff argued that
the arrangement of lights at the intersection constituted a dangerous or defective
condition of public property. In reversing a grant of summary judgment in favor of the
city, the Court of Appeal stated, “defendant undertook to control traffic at the intersection
and invited reliance on the signals. It may be held liable if it created a dangerous or
defective condition in doing so. [Citations.]” (Id. at p. 434.)
       Teall is distinguishable. A pedestrian standing at the intersection where the child
was standing could not see the signal that was intended to guide her safely across.
Instead, she could only see a signal which would indicate to her that oncoming traffic was
stopped. Thus, a reasonable person could have concluded that the placement of the
signals created a dangerous condition. Even if both parties -- the driver and the
pedestrian -- were acting with due care, an accident could occur due to the placement of




                                             16
the signals. Here, there is no contention that the placement of the signals would lead a
person acting with due care to cross at a time when it was not yet safe.
          Appellant argues that here, as in Teall, the conditions at the subject crosswalk
created a false sense of safety. Appellant fails to acknowledge that here, unlike in Teall,
one of the parties -- the driver -- failed to act with due care, ignoring the visible signs and
lights.
          Appellant next cites Mathews v. State of California ex rel. Department of
Transportation (1978) 82 Cal.App.3d 116 (Mathews). In Mathews, the plaintiff’s car was
struck broadside by another vehicle in an intersection where the traffic lights were
malfunctioning. The plaintiff alleged that the traffic lights were operating under the
supervision and control of the state, and that the state had been informed several times on
the day of the accident that the traffic signal lights were malfunctioning, creating a highly
dangerous situation at a heavily traveled intersection. Specifically, the electric signal
controlling east-west traffic was continuously green (go) and the signal controlling north-
south traffic was continuously red (stop). (Id. at p. 119.) The plaintiff appealed after the
trial court granted judgment on the pleadings for the defendant. The Court of Appeal
reversed, finding that the condition at the intersection could not be found not dangerous
as a matter of law. (Id. at p. 122.) Specifically, the court explained, the motorist
traveling through the green light would have no knowledge that the lights were
malfunctioning, and may be “deceptively lulled into a sense of freedom from interference
by cross traffic.” (Id. at p. 121.) At the same time, out of exasperation and impatience,
the motorist stuck at the red light might reduce or abandon caution and increase the risks.
(Id. at p. 122.) Under the circumstances, the Court of Appeal was unable to conclude that
the intersection was not dangerous as a matter of law. (Ibid.)
          Appellant argues that here, as in Mathews, the pedestrian crossing did not know
that the embedded lights were not functioning. Thus, appellant argues, the
malfunctioning lights created a trap for pedestrians.
          We disagree. The trap in Mathews was created in part by a red light that was stuck
on the stop signal. Thus, even a motorist exercising due care, who had stopped in


                                               17
accordance with the law, was likely to abandon caution and proceed into the intersection.
Here, the driver who hit appellant had no such inducement to take risk. Instead, had he
been using due care, he would have noted the pedestrian crossing signs and the flashing
amber light, and appellant would have been able to cross the intersection safely.
Appellant has failed to convince us that the malfunctioning embedded lights created the
same sort of trap that existed in Mathews.
       Finally, appellant cites Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749
(Cole). In Cole, a park attendant who was struck by a vehicle brought an action against
the town alleging a dangerous condition. At the time of the accident, the plaintiff had
parked her vehicle along a gravel strip between the park and the edge of a road. At the
moment of impact, she was loading a bicycle into her trunk. A driver who had been
drinking alcohol veered off the road and collided with the plaintiff as she loaded her
vehicle. (Id. at p. 754.) Alleging a dangerous condition of public property against the
town, the plaintiff argued that the town failed to allow adequate time and distance for the
safe merging of traffic; failed to provide a reasonable and efficient barrier between the
parking area and the road; failed to properly construct and maintain the parking area; or,
alternatively, failed to prohibit or limit parking in the area, among other things. (Id. at p.
755.) The town was granted summary judgment on the ground that the plaintiff was
unable to establish that any of the stated characteristics of the property was the cause of
her injuries.
       The Court of Appeal reversed. The court noted that plaintiff’s theory was that the
configuration of the road itself and the gravel parking area was such that drivers were
induced to leave the road and swerve onto the parking area. The court further noted that
the plaintiff had presented evidence to support this theory, such as a declaration from a
neighbor who had just turned left into her driveway when the accident occurred. The
neighbor declared that nearly every time she made the left with cars behind her, someone
would exit the road and pass her on the right, thus driving into the gravel parking area.
Another witness stated that he saw cars stack up behind vehicles attempting to turn left,
and about once every two weeks drivers would pass such cars by exiting the road and


                                              18
driving on the gravel area. Another witness reported seeing cars execute U-turns using
the gravel area. (Cole, supra, 205 Cal.App.4th at pp. 759-760). Under the
circumstances, the Court of Appeal found sufficient evidence to present a question of fact
to the jury:
              “The foregoing evidence would seem to amply support a finding that
       a danger existed at the site of the accident of just the kind of injury plaintiff
       sustained. It would also support the attribution of this danger to the
       physical characteristics of the property. At least three such characteristics
       could be found to constitute an inducement or temptation for drivers to act
       as Rodriguez did: the presence of driveways across the street from the
       graveled area, which provided an occasion for some drivers to turn left,
       which in turn required them to stop and wait for oncoming traffic to clear;
       the absence of a second eastbound lane, which resulted in the formation of
       obstructions or stalls behind left-turning drivers; and the narrowness of the
       pavement, which made it impossible to pass such an obstruction on the
       right without entering the graveled area.”

(Cole, supra, 205 Cal.App.4th at p. 760.)
       The Cole court further found that the driver’s intoxication was not a bar to a
finding of liability on the part of the town. The court specified: “The status of a
condition as ‘dangerous’ for purposes of the statutory definition does not depend on
whether the plaintiff or other persons were actually exercising due care but on whether
the condition of the property posed a substantial risk of injury to persons who were
exercising due care. [Citation.]” (Cole, supra, 205 Cal.App.4th at p. 768.) Thus, in
Cole, the court was persuaded that the conditions of the road and parking area at issue
induced even careful drivers to swerve off the road into the parking area, thus creating
substantial risk to pedestrians.
       Here, unlike in Cole, appellant did not present evidence that the condition of the
property posed a substantial risk of injury where drivers are exercising due care. Instead,
the flashing amber light, the pedestrian crossing signs, and the painted crosswalk would
induce a careful driver to slow down and watch for pedestrians. Unlike the
circumstances in Cole, no characteristic of the property would induce a safe driver to
engage in any action that would put a pedestrian at risk.


                                              19
       In sum, we find that the cases cited by appellant do not suggest that a reasonable
juror could find a dangerous condition of public property existed at the intersection of
Valley Boulevard and Meeker Avenue on the evening of the accident. Instead, no
physical condition of the property would lead to a substantial risk of injury as a matter of
law. In particular, there is a painted pedestrian crosswalk; a pedestrian crosswalk sign
and signal in each direction; and a large, amber light which flashes in each direction
when activated. Unlike the cases cited by appellant, no physical characteristic of the
intersection would induce drivers to act in a way that created risk, or lull pedestrians or
drivers into a false sense of safety. Under the circumstances, the malfunctioning
embedded lights are trivial defects as a matter of law. (§ 830.2.)
VI. Section 830.8 immunity
       Having determined that the defect at issue was trivial as a matter of law pursuant
to section 830.2, we need not consider the question of whether the defect at issue falls
into the categories of immunity provided by sections 830.4 and 830.8. However, we
briefly discuss these statutes and related case law in order to fully address appellant’s
argument that the City’s failure to maintain the embedded lights created a trap for unwary
members of the public.
       Section 830.4 specifies that a condition is not dangerous “merely because of the
failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs,
or speed restriction signs, as described by the Vehicle Code, or distinctive roadway
markings as described in Section 21460 of the Vehicle Code.” (§ 830.4.) The City takes
the position that the absence of flashing lights in the crosswalk is a failure to provide such
signals as set forth in section 830.4, and thus is not dangerous as a matter of law.
       For those traffic signals not specifically referenced in section 830.4, section 830.8
provides immunity. Section 830.8 provides that a public entity is not liable for an injury
caused by any traffic or warning signals, signs, markings or devices described in the
Vehicle Code. However, the statute specifies that “Nothing in this section exonerates a
public entity or public employee from liability for injury proximately caused by such
failure if a signal, sign, marking or device (other than one described in Section 830.4)


                                              20
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 have been
anticipated by, a person exercising due care.” (§ 830.8.)
       Relying on section 830.8, appellant argues that a reasonable person could
conclude that the City’s actions in failing to maintain the embedded lights, and failing to
warn the public that the lights were not functioning, created a trap for pedestrians such as
appellant who acted in reliance upon such lights.
       Appellant cites several cases in support of this theory. (See Bakity v. County of
Riverside (1970) 12 Cal.App.3d 24 [stop sign placed about 36 feet east of the east edge of
the street and near trees could be considered a dangerous condition of public property
because trees obstructed the view of approaching vehicles, and because the sign was
placed 36 feet beyond where the oncoming vehicle was supposed to stop, which is not
where such signs are normally placed]; Briggs v. State of California (1971) 14
Cal.App.3d 489 [creation of a dangerous condition was an issue of fact for the jury where
property was unstable and sign warning of mudslide danger was not very visible and
could not be read by the driver of a car traveling between 45 and 55 miles per hour]; Hilts
v. County of Solano (1968) 265 Cal.App.2d 161 [jury could find dangerous condition of
public property where the intersection was dangerous not only because of a failure to
provide warning or regulatory signs but also because of the presence of trees, the
differences in elevation between the roadway grades and adjoining fields, and the method
of striping the intersection].)
       The cases cited by appellant do not suggest that the nonfunctional embedded lights
created a trap under the circumstances of this case. The lights were not necessary to warn
motorists of a dangerous condition. Instead, they were additional safety measures
provided to pedestrians using a well-marked crosswalk. Cars approaching the
intersection had several other sources available to warn them when a pedestrian was in
the crosswalk. There were no trees or other obstructions blocking oncoming vehicles
from seeing the pedestrian warning signs or the flashing amber light. Nothing impaired a



                                             21
motorist driving with due care from seeing the warning signs, and nothing lulled a careful
motorist into a dangerous situation.
       Further, we note that nonfunctioning lights, in general, do not give rise to liability
on the part of a public entity. In Chowdhury, this court addressed this issue. There, the
deceased was traveling through an intersection during a power outage. In discussing the
issue of whether a dangerous condition existed at the intersection, the Chowdhury court
acknowledged that where the government creates a trap and thereby causes an accident to
occur, it may be held liable. However, no liability attaches where the lights in question
are not functioning at all:
              “‘When the [traffic] lights were turned off, their defective condition
       could no longer mislead or misdirect the injured party.’ [Citations.] The
       same result obtains whether the traffic signals are extinguished by design or
       by accident.”

(Chowdhury, supra, 38 Cal.App.4th at p. 1195.)
       The Chowdhury court explained that “when the signals were extinguished during
the power outage, the City did not invite the public to rely on the signals as a means of
controlling the right-of-way at the intersection.” (Chowdhury, supra, 38 Cal.App.4th at
p. 1195.) Similarly, the City did not invite pedestrians to rely on the malfunctioning
embedded lights at the intersection of Valley Boulevard and Meeker Avenue. Instead,
those lights “gave no indication at all, and did not mislead or misdirect” anyone. (Ibid.)
       In light of the law discussed above, we must reject appellant’s argument that the
conditions at the intersection in question created a trap for pedestrians.




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                                  DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                             ______________________________, J.
                                             CHAVEZ

We concur:



______________________________, P. J.
BOREN



______________________________, J.*
FERNS




________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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