Filed 08/23/19




                             CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                    DIVISION THREE


 CYNTHIA HUERTA, et al.,

     Plaintiffs and Appellants,                      G056076

         v.                                          (Super. Ct. No. 30-2015-00823806)

 CITY OF SANTA ANA,                                  OPINION

     Defendant and Respondent.



                 Appeal from a judgment of the Superior Court of Orange County, Glenn
Salter, Judge. Affirmed.
                 DiMarco Araujo Montevideo, Brooke L. Bove and John A. Montevideo for
Plaintiffs and Appellants.
                 Carpenter, Rothans & Dumont, Justin Reade Sarno and Steven J. Rothans,
for Defendant and Respondent.
                                    *        *         *
              Cynthia Huerta, Maria De Jesus Gonzalez and Andres Gonzalez are the
parents of three girls who were tragically killed on Halloween night in 2014 when they
were struck by a speeding motorist while they were crossing the street in a marked
crosswalk. The driver fled the scene. He was later arrested and pleaded guilty to felony
vehicular manslaughter.
              Huerta and the Gonzalezes sued the City of Santa Ana (the City), alleging a
cause of action for damages based on a claim that the crosswalk constituted a “dangerous
                                                                                          1
condition of public property” pursuant to Government Code sections 835 and 835.2.
They contend the trial court erred by granting summary judgment in favor of the City,
arguing there were triable issues of fact related to whether the crosswalk qualified as “a
dangerous condition of public property” and whether the City had notice of that
dangerous condition before this accident.
              While it has long been the law that, in the absence of a statute or charter
provision to the contrary, a city has no duty to light its streets, an exception to that rule
may exist if a ‘“peculiar condition”’ of the property makes lighting necessary. (Antenor
v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483 (Antenor).) Huerta and the
Gonzalezes assert that a large tree adjacent to the north end of the crosswalk, in
conjunction with a nearby street light, caused a shadow to be cast over the crosswalk
making it unreasonably dark at night. As a result, they argue their children were rendered
invisible to any approaching driver—thereby creating a “peculiar condition” that qualifies
as an exception to the Antenor rule, thus requiring additional lighting in the crosswalk.
They also argue the crosswalk constituted a “dangerous condition of public property”
because the posted speed limit in the area was too high for the nighttime conditions.



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


                                               2
               For reasons discussed below, we disagree with both contentions. After
scrutinizing these facts, we cannot find a “dangerous condition of public property” or any
“peculiar condition” that would trigger an obligation by the City to modify its street
lighting at the accident scene. Moreover, as the trial court observed in granting the City’s
motion for summary judgment, it is undisputed that the driver who hit the girls was
exceeding the posted speed limit, and therefore the speed limit was not a proximate cause
of these tragic deaths. We therefore must affirm the judgment.

                                          FACTS
               On Halloween night in 2014, Huerta’s daughters, Lexi Perez-Huerta and
Lexandra Perez-Huerta, and the Gonzalezes’ daughter, Andrea Gonzalez, were all struck
and killed by a car while crossing Fairhaven Avenue in a marked crosswalk. The
speeding driver who killed the girls later admitted he was criminally reckless when he
pleaded guilty to three counts of felony vehicular manslaughter involving “gross
negligence.”

1.       The Intersection
               Fairhaven is a two-way, four-lane street that runs east-west. The accident
occurred at the “T” intersection where Old Grand Street meets Fairhaven from the south.
The marked crosswalk bisects Fairhaven from the southeast corner of the intersection to
the northern side of Fairhaven. There is an elementary school at the northern end of the
crosswalk, where a large tree grows between the street and the school.
               The posted speed limit for that section of Fairhaven is generally 45 miles
per hour, but it is reduced to 25 miles per hour when children are present. There are
several signs along the northern (westbound) side of Fairhaven, alerting approaching cars
to the existence of the upcoming crosswalk; these warnings begin approximately 630 feet
east of the crosswalk. During school hours, the crosswalk is monitored by a crossing
guard.


                                             3
              At night, the intersection is illuminated by a single street light at the
southeast corner of Fairhaven and Old Grand, near the south end of the crosswalk. The
next closest street light is on the south side of Fairhaven, approximately 230 feet west of
the intersection. In their complaint, Huerta and the Gonzalezes assert that on the night of
the accident, “the intersection was ‘pitch black’ at the subject crosswalk.”
              The civil engineering expert retained by Huerta and the Gonzalezes stated
in a declaration filed with the court that the night time lighting at the intersection—as
measured two years after the accident in November 2016—was “dim.” Directly below
the one street light at the southeast corner the light level was according to the expert
significantly below what would be “expected.” The expert also stated that the north end
of the crosswalk, farthest away from the street light, was the “dimmest” part of the
crosswalk. There is a large tree on the north side of Fairhaven that overhangs the right
lane of Fairhaven (the number two westbound lane) where the crosswalk terminates in
front of the school.

2.     The Accident
              The three girls were all wearing black clothing on Halloween. At
approximately 6:45 p.m. that evening, they entered the crosswalk at the southern end
where the street light is located, and began to cross Fairhaven northbound toward the
school. A westbound vehicle, preparing to turn left onto Old Grand Avenue, yielded for
                                      2
them in the westbound left turn lane. Moments after they passed in front of that stopped

       2
               Huerta and the Gonzalezes emphasize that the driver who had stopped at
the crosswalk for the girls was preparing to make a left turn, claiming “it would be
reasonable for a[nother] motorist [i.e., Bell] to presume the car is waiting for oncoming
traffic to pass before he turns left,” rather than yielding to pedestrians in the crosswalk.
They suggest this fact made the stopped vehicle “less suspicious than if a car had been
stopped at the crosswalk in the regular lanes of traffic.” They identify no evidence to
suggest there was oncoming traffic close enough to impede the stopped vehicle from
making a safe left turn. We note the girls had time to safely cross the eastbound lanes of
Fairhaven just moments before passing in front of the stopped vehicle in the westbound

                                              4
car, Jaquinn Ramone Bell, driving at a speed somewhere between 50 and 70 miles per
hour in the westbound number two lane, struck and killed all three girls. The accident
                                                             3
was captured on the adjacent school’s surveillance video.        There is no evidence Bell
attempted to stop before hitting the girls. Bell fled the scene, but he was apprehended
two days later following an investigation and manhunt.
              Huerta and the Gonzalezes sued Bell, the City of Santa Ana, and the
Orange Unified School District. As against the City, they alleged a single cause of action
for damages based on the theory that the crosswalk qualified as a “dangerous condition of
public property” pursuant to section 835.
              In August of 2017, following extensive discovery, the City moved for
summary judgment, or alternatively for summary adjudication, of the following five
issues: (1) it was entitled to design immunity pursuant to section 830.6; (2) the
intersection of Fairhaven and Old Grand Street does not constitute “a dangerous
condition of public property” as defined by sections 830 and 835; (3) there is no evidence
the City had actual or constructive notice of a dangerous condition at the intersection of
Fairhaven and Old Grand Street; (4) Bell’s criminally negligent driving, amounting to
felony vehicular manslaughter, was the proximate cause of Huerta and the Gonzalezes’
injuries; and (5) to the extent there is any dangerous condition at the intersection, it
constitutes a trivial defect pursuant to section 830.2, and is otherwise foreclosed by
sections 830.4 and 830.8.

left turn lane, which raises the inference the stopped car was yielding to them rather than
to any approaching traffic.
       3
               The estimate of Bell’s speed generated by the Santa Ana Police
Department, whose officers conducted videotaped test runs and compared them to the
surveillance footage of the accident, was between 65 and 70. Huerta and the Gonzalezes
disputed that speed estimate, pointing to the testimony of an eyewitness who estimated
Bell was driving “about 50 miles an hour.” Either way, it is undisputed Bell was driving
in excess of the posted speed limit at the time of the accident.


                                               5
              In granting the motion for summary judgment, the trial court focused
largely on the second and third issues raised by the City. The court found the City had
met its burden of showing there was no dangerous condition involving the crosswalk by
“provid[ing] evidence that there were no peculiar conditions of the road at this location:
The crosswalk was clearly marked, the street is level and straight, there are no sight
obstructions, the crosswalk is clearly marked in advance both by parkway signage as well
as street lettering, and the accident data showed no accidents involving pedestrians in the
eight years preceding this accident.” The court also noted the City provided authority
demonstrating “it could not be held liable for a dangerous condition based on the absence
of lighting because a city has no duty to install lighting. (Antenor v. City of Los Angeles
(1985) 174 Cal.App.3d 477, 483.)”
              The court rejected the assertion that the posted speed limit on Fairhaven
was too high for night-time driving because drivers might “‘outdrive’ their headlights” at
that speed, reasoning that “[t]he posted speed limit is simply the maximum speed a driver
may drive at any time. A driver must still adhere to the basic speed law which prohibits
driving at a speed which endangers people or property. (See Veh. Code, § 22350.) A
driver who proceeds at a speed that ‘outdrives’ his or her headlights is not obeying the
basic speed law and is not using the public street in a safe and reasonable manner, even if
the posted speed limit is higher.” The court also concluded the asserted impropriety of
the posted speed limit was not the proximate cause of the accident because “[i]t is
undisputed that Bell was not driving the posted speed limit, but far above it.”

                                       DISCUSSION

1.     Standards Applicable to Summary Judgment
              “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. [Citation.] A defendant moving for summary


                                              6
judgment 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. [Citation.] Once the defendant has met that burden, the burden shifts
to the plaintiff to show that a triable issue of material fact exists.” (Myers v. Trendwest
Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1409.)
              “There is a genuine issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the party opposing
the motion in accordance with the applicable standard of proof. Initially, the moving
party bears a burden of production to make a prima facie showing of the nonexistence of
any genuine issue of material fact. If he carries his burden of production, he causes a
shift: the opposing party is then subjected to a burden of production of his own to make a
prima facie showing of the existence of a genuine issue of material fact.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)
              “On appeal after a motion for summary judgment has been granted, we
review the record de novo, considering all the evidence set forth in the moving and
opposition papers except that to which objections have been made and sustained.” (Guz
v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “In performing our de novo
review, we must view the evidence in a light favorable to plaintiff as the losing party
[citation], liberally construing her evidentiary submission while strictly scrutinizing
defendants’ own showing, and resolving any evidentiary doubts or ambiguities in
plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
              Under this de novo standard, “the trial court’s stated reasons for granting
summary judgment ‘are not binding on us because we review its ruling, not its
rationale.’” (Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th
153, 157.) We will affirm the summary judgment if correct on any of the grounds
asserted in the motion. (American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728,
747-748.)

                                              7
2.     Background Law
              Generally speaking “[a] public entity is not liable for an injury, whether
such injury arises out of an act or omission of the public entity or a public employee or
any other person.” (§ 815, subd. (a).) An exception to this general rule is created by
section 835, which provides that “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.”
              The term “dangerous condition” is defined in section 830, subdivision (a)
(section 830(a)), which states: “‘Dangerous condition’ means 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.”
              When it comes to public roadways, “a public entity is only required to
provide roads that are safe for reasonably foreseeable careful use.” (Chowdhury v. City
of Los Angeles (1995) 38 Cal.App.4th 1187, 1196.) “[P]ublic liability lies under section
835 only when a feature of a public property has ‘increased or intensified’ the danger to
users from third party conduct.” (Bonanno v. Central Contra Costa Transit Authority
(2003) 30 Cal.4th 139, 155.)
              “‘[A] claim alleging a dangerous condition may not rely on generalized
allegations [citation] but must specify in what manner the condition constituted a
dangerous condition.’ [Citation.] A plaintiff’s allegations, and ultimately the evidence,

                                                8
must establish a physical deficiency in the property itself. [Citations.] A dangerous
condition exists when public property ‘is physically damaged, deteriorated, or defective
in such a way as to foreseeably endanger those using the property itself,’ or possesses
physical characteristics in its design, location, features or relationship to its surroundings
that endanger users.” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340,
1347-1348.)

3.     The Claim of Dangerous Condition
              For over three decades, Antenor has been the leading case on a California
city’s obligation to light its roadways. The Antenor court determined “‘[i]n the absence
of a statutory or charter provision to the contrary, it is generally held that a municipality
is under no duty to light its streets even though it is given the power to do so, and hence,
that its failure to light them is not actionable negligence, and will not render it liable in
damages to a traveler who is injured solely by reason thereof.’” The court, however,
added that ‘“[a] duty to light, and the consequent liability for failure to do so,’” may arise
if there is ‘“some peculiar condition rendering lighting necessary in order to make the
streets safe for travel.’” (Antenor, supra, 174 Cal.App.3d at p. 483.)
              Although Huerta and the Gonzalezes suggest the authority cited in Antenor
provides an unconvincing foundation for the rule stated, they also acknowledge the rule
has been consistently cited and applied in many other cases alleging dangerous conditions
of public property (see, e.g., Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th
124 (Mixon); and Plattner v. City of Riverside (1999) (69 Cal.App.4th 1441). Until oral
argument, they did not seem to dispute application of the Antenor rule here. Instead, they
focused on the fact that Antenor creates an exception to the rule in cases where a
                                                   4
“peculiar condition” makes lighting necessary.

       4
              At oral argument Huerta and the Gonzalezes’ counsel at least impliedly
asked us to reconsider and disagree with Antenor and its progeny. We decline to do so as
imposing a duty on cities to light their streets implicates a host of public policy issues

                                               9
              Huerta and the Gonzalezes assert that the tree located at the north end of the
crosswalk (whose branches extended out over the number two lane of westbound
Fairhaven) created just such a “peculiar condition” that made the crosswalk especially
dangerous. Specifically, they contend the tree branches overhanging the street “cast[] a
large, dark shadow over the north end of the crosswalk, further reducing illumination of
pedestrians” in the crosswalk. In support of this allegation, they point to the declaration
of their “human factors” expert who concluded, “[a] large tree immediately north of the
crosswalk further shades the northern portion of the crosswalk from any ambient
illumination.”
              While that statement may be true in the abstract—especially during
daylight hours—we cannot see how the tree at issue could have cast a material shadow on
the night of the accident. The single street light at the intersection was located at the
opposite end of the crosswalk. On a dark night, the street light could only have caused
the tree to cast its shadow away from the street toward the school. That light could not
have created a shadow over the area of impact of this accident.
              The civil engineering expert hired by Huerta and the Gonzalezes declared
that “it is clear from the data that the tree had the effect of reducing the lighting levels
along the north side of Fairhaven Avenue at the north end of the crosswalk.” However,


(e.g., public safety, cost, and potential light pollution). The parties addressed none of
these issues in their briefing. Given the many competing considerations involved, we
conclude the Legislature is best suited to determine whether, and to what extent, cities
should be compelled to light their streets at night.
               We believe this conclusion is supported by the rationale underlying the
often-related design immunity defense discussed in Higgins v. State of California (1997)
54 Cal.App.4th 177: “‘“Basically, this defense is predicated upon the concept of
separation of powers—that is, the judicial branch through court or jury should not review
the discretionary decisions of legislative or executive bodies, to avoid the danger of
‘impolitic interference with the freedom of decision-making by those public officials in
whom the function of making such decisions has been vested. . . .””” (Id. at p. 185.)


                                              10
the expert does not relate that opinion to conditions on the night of the accident, when the
sole source of illumination for the intersection was the fixed street light on the opposite
       5
corner. Nor does the expert quantify the extent to which the lighting in the crosswalk
might have been reduced by the tree, as opposed to other factors such as the gradual
diminution of the street light’s impact as distance from that light source increased.
              Ultimately, the facts relied upon by Huerta and the Gonzalezes and their
experts indicate that the crosswalk was “darkest at the north end . . . .” That assertion is
consistent with the uncontested fact the sole source of illumination for the intersection is
the street light located at the opposite end of the crosswalk. It does not support an
inference that the tree exacerbated the darkness factor at the point of impact. Nor is there
any evidence that tree branches physically blocked the driver’s view of the crosswalk or
any person in it. We therefore cannot find that the presence of the tree at the north end of
the crosswalk raises a question of fact related to the existence of a “peculiar condition”
                                                 6
that might necessitate lighting under Antenor.
              We conclude this case is virtually indistinguishable from Mixon where, as
here, a child was killed crossing a street in a marked crosswalk in the evening. Although
both a northbound car and a southbound car had already stopped for the child and his
family in the crosswalk, a second southbound vehicle drove through the crosswalk



       5
               There is no evidence that the intersection was illuminated by moonlight on
the night of the accident; to the contrary, Huerta and the Gonzalezes contend it was
‘“pitch black”’ that night.
       6
                The dissent suggests our analysis improperly resolves disputed issues of
fact that should be resolved at trial. But such disputes will justify a trial only if the issues
are material in determining potential liability. In our view, disputes about the relative
light levels at various points in the crosswalk, and their possible effect on visibility, are
not material in light of Antenor and its progeny. Thus, it is on the law, not the facts, that
we differ.


                                              11
without stopping and killed the child before his father could pull him out of the way.
(Mixon, supra, 207 Cal.App.4th at pp. 129-130.)
              The issue presented to the Mixon court was remarkably similar to the issue
now before us: “In this case, plaintiffs argue that even if the State had no duty to provide
lighting, it may be held liable because it undertook to provide lighting and did so
negligently by lighting the surrounding areas more brightly than the 3rd and R Streets
intersection.” (Mixon, supra, 207 Cal.App.4th at p. 134.) After rejecting plaintiffs’
position, the court explained its ruling: “The lighting configuration at the subject
intersection and surrounding area is not unlike many urban areas where there are
numerous light sources, public and private, and gradations of light intensity. A public
entity, which has no general duty to light its streets, cannot be held liable for failing to
provide a consistent level of lighting between one street and the next.” (Ibid.)
              Huerta and the Gonzalezes argue the crosswalk constituted a “dangerous
condition of public property” because it was not lit equally at both ends, and the relative
darkness caused by the tree at the north end created a “peculiar condition” that made it
especially difficult for drivers in the number two lane to see a northbound pedestrian. We
cannot agree. The physical layout of the intersection here, considering the relative
positions of the street light, the crosswalk, and the involved tree, does not support either
the “dangerous condition” or the “peculiar condition” argument.
              Finally, Huerta and the Gonzalezes suggest the trial court also erred by
rejecting their assertion that the 45-mile per hour posted speed limit created a dangerous
condition at the crosswalk at night because a driver at that speed would “‘outdrive’ their
headlights” and be unable to see pedestrians in the crosswalk in time to stop. In rejecting
that assertion, the trial court relied upon the “basic speed law” found in Vehicle Code
section 22350, which states that “No person shall drive a vehicle upon a highway at a
speed greater than is reasonable or prudent having due regard for weather, visibility, the
traffic on, and the surface and width of, the highway, and in no event at a speed which

                                              12
endangers the safety of persons or property.” The court reasoned that if, as Huerta and
the Gonzalezes suggest, a driver going 45 miles per hour would not be able to see
whether there were pedestrians in the crosswalk (which he knew he was approaching due
to signage) in time to stop, he was obligated to slow down.
              We agree. The basic speed law does not automatically permit a driver to
drive at the posted speed limit. If the conditions—including visibility or lack thereof—
are such that driving at the posted speed limit prevents drivers from seeing pedestrians in
a crosswalk in time to avoid hitting them, they must slow down.
              It is for that reason, as well as the fact that Bell was indisputably exceeding
the posted speed limit when he hit and killed these three little girls, that we concur with
the trial court’s determination that the 45-mile per hour posted speed limit was not a
proximate cause of the accident.

                                      DISPOSITION
              The judgment is affirmed. The City is to recover its costs on appeal.




                                                  GOETHALS, J.

I CONCUR:



IKOLA, ACTING P. J.




                                             13
THOMPSON, J., dissenting. Triable issues of material fact exist regarding the
dangerous condition alleged by plaintiffs. Therefore, I respectfully disagree with the
majority’s conclusion the trial court properly granted summary judgment to the City.
              Among other things, plaintiffs contend the crosswalk was in a dangerous
condition because of the relative contrast between (a) the light area illuminated by the
streetlight at the south end of the crosswalk, and (b) the dark area under the large tree
overhanging the north end of the crosswalk. They supported this contention with specific
and uncontroverted evidence which the court ruled was admissible.
              Multiple eyewitnesses testified the area was poorly lit and the north end of
the crosswalk closest to the tree was darkest—in the words of one witness, “pitch-black.”
Even more compelling evidence came from plaintiffs’ experts: Dale R. Dunlap, a
registered civil engineer with decades of experience in traffic engineering and
transportation design; and Jason A. Droll, a human factors scientist who evaluates human
perception, response, memory and decision making.
              Dunlap assessed the intersection and crosswalk where the accident
occurred, and the roadway approaches to them. His declaration confirmed the streetlight
closest to the crosswalk was at the southeast corner of the intersection, adjacent to the
crosswalk’s south end. It was the only streetlight close to the crosswalk, and the next
closest was approximately 230 feet away.
              Based on lighting measurements Dunlap took in and around the crosswalk
at the same time of year and around the same time of night as the accident, he stated the
brightest location in the area was immediately beneath the streetlight at the south end of
the crosswalk. In contrast, lighting levels were much dimmer under the tree overhanging
the north end of the crosswalk where the accident occurred. He explained “it [was] clear
from the data that the tree had the effect of reducing the lighting levels . . . at the north
end of the crosswalk.”



                                               1
              Dunlap explained the significance of the large discrepancy in illumination
between the crosswalk’s south and north ends. Citing an American Association of State
Highway and Transportation Officials (AASHTO) publication concerning the planning,
design, and operation of pedestrian facilities, he stated “[l]ighting should be adequately
spaced to provide a uniform level of light.” Because the crosswalk streetlight failed to do
so, the girls had walked from a lighted area into darkness. Plus, the low levels of light at
the north end fell far short of roadway lighting standards established by AASHTO—by
28 percent at ground level, and by 72 percent at waist height level.
              Dunlap ultimately opined “[l]ighting at the intersection . . . was
deficient[,] leaving the intersection and crosswalk dangerous for nighttime users crossing
[the street] with due care.”
              Droll provided an “[a]voidance [a]nalysis” of the intersection, crosswalk
and roadway approaches, “address[ing] the necessary elements to ensure a driver can
detect a pedestrian at night and safely stop before collision.” Regarding illumination, he
explained “[t]he only relevant available [artificial] illumination for pedestrians in the area
[on the night of the accident] would [have been] from headlights or streetlights.”
Because headlight illumination has inherent limitations, he stated it is “often not
sufficient for pedestrian detection,” making streetlights necessary.
              Like Dunlap, Droll took nighttime light measurements at various points
within the crosswalk. Using a technique that captures illumination upon the exposed
surfaces of pedestrians which face oncoming drivers, he found the illumination in the
northern portion of the crosswalk was “significantly less” than in the southern portion. In
addition, he observed “[a] large tree immediately north of the crosswalk further shades
the northern portion of the crosswalk from any ambient illumination.” (Italics added.)
              Droll stated: “From my professional experience assessing areas with
respect to their fostering of pedestrian detection, I could subjectively appreciate a driver’s
difficulty in detecting pedestrians, especially in the northern portion of the crosswalk.”

                                              2
And Droll opined “pedestrians within the incident crosswalk are not sufficiently
illuminated to ensure their detection by drivers[.]”
              Rather than responding to plaintiffs’ illumination evidence with contrary
evidence of its own, the City simply made objections to the Dunlap and Droll
declarations. But the trial court overruled all of these objections, leaving plaintiffs’
evidence and expert opinions uncontroverted.
              The majority dismisses plaintiffs’ uncontroverted evidence and rejects
plaintiffs’ contentions based upon its own fact-finding and weighing of the evidence. It
finds: “[W]e cannot see how the tree at issue could have cast a material shadow . . . . On
a dark night, the street light could only have caused the tree to cats its shadow away from
the street . . . . That light would not have created a shadow over the area of impact of this
accident.” And it weighs the value of Dunlap’s opinion, identifying matters it believes
Dunlap should have, but failed to, discuss, and incorrectly claiming Dunlap failed to
relate his opinion to conditions on the night of the accident.
              This kind of judicial fact-finding and weighing of the evidence is not
permitted in the summary judgment context. “It is clearly established that ‘[f]indings of
fact and conclusions of law are required after “the trial of a question of fact by the court.”
[Citation.] They have no place in summary judgment procedure which seeks to discover
whether there is anything to try and is concerned with “issue finding” not “issue
determination.” [Citations.] A summary judgment proceeding is not a trial on the merits.
[Citation.]’ [Citations.]” (EHP Glendale, LLC v. County of Los Angeles (2011) 193
Cal.App.4th 262, 275; see also Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832,
839 [“If the evidence is in conflict, the factual issues must be resolved by trial”].)
              “There is to be no weighing of evidence.” (Kids’ Universe v. In2Labs
(2002) 95 Cal.App.4th 870, 880; see also McIntosh v. Mills (2004) 121 Cal.App.4th 333,
338.) Similarly, there is to be no resolving of fact issues. (Calemine v. Samuelson (2009)
171 Cal.App.4th 153, 161; see also Sanchez v. Swinerton & Walberg Co. (1996) 47

                                              3
Cal.App.4th 1461, 1465-1466 [“The court has no power in a summary proceeding to
weigh one inference against another or against other evidence”].)
              The majority also relies on faulty logic to reject plaintiffs’ disparate
illumination contention. It concedes the evidence shows the north end of the crosswalk
was darkest, but then asserts “[i]t does not support an inference that the tree exacerbated
the darkness factor at the point of impact.” Instead, the majority solely attributes the
darkness to the location of the streetlight at the crosswalk’s south end, and concludes it
“cannot find that the presence of the tree . . . raises a question of fact related to the
existence of a ‘peculiar condition’ that might necessitate lighting . . . .”
              This analysis ignores Dunlap’s and Droll’s uncontroverted expert opinions
concerning the effect of the tree, and it mistakes the inferences which may reasonably be
drawn from the other evidence. The darkest location was under the tree. While the
location of the streetlight may have contributed to the illumination disparity, it is also
possible the tree played a role by blocking other point-source artificial and/or ambient
light. And we are required to liberally construe this evidence and resolve all doubts in
plaintiffs’ favor. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717.)
              Plus, evidence that the north end of the crosswalk was pitch black and the
south end was better lit squarely aligns with plaintiffs’ core contention—the crosswalk
was dangerous because of the stark contrast in illumination between its two ends. Put
another way, the artificial lighting provided by the single streetlight at the south end
could have made the crosswalk more dangerous than it would have been had there been
no streetlight at all or had there not been a tree blocking illumination from other point-
source artificial and ambient light at the north end.
              The majority separately concludes as a matter of law, based on Antenor and
Mixon, “[a] public entity . . . cannot be held liable for failing to provide a consistent level
of lighting.” I question whether Antenor was correctly decided. The general rule it
announced, that a municipality has no duty to light its streets, is dubious. The Antenor

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opinion relies solely on an American Jurisprudence Second citation. Moreover, neither
Antenor nor any subsequent case citing it has ever considered whether the general rule is
consistent with California law. (Cf. Rowland v. Christian (1968) 69 Cal.2d 108.)
              Even if Antenor correctly stated the general rule, it recognized an exception
may arise when there is ‘“some peculiar condition rendering lighting necessary in order
to make the streets safe for travel.’” (Antenor, supra, 174 Cal.App.3d at p. 483.) The
application of that exception is the crux of this case, as it was in Mixon.
              I agree this case is virtually indistinguishable from Mixon. But I would not
follow Mixon here because it mistakenly construed the peculiar condition exception and it
is not binding on us. (People v. Dimacali (2019) 32 Cal.App.5th 822, 838.)
              The accident in Mixon occurred in a marked crosswalk at a four-way
intersection. There was no streetlight above the intersection and it was undisputed nearby
areas were more brightly lit. (Mixon, supra, 207 Cal.App.4th at p. 132.) The plaintiffs
argued the lack of lighting at the intersection “made [it] especially dangerous because the
poorly lit intersection contrasted sharply with better lit areas surrounding it.” (Ibid.)
              The court rejected this argument as “no more than a variant of the long-
rejected claim that a public entity is negligent for failing to provide streetlights.” (Mixon,
supra, 207 Cal.App.4th at p. 134.) It also rejected the plaintiffs’ claim they were faulting
“‘the lighting configuration’” and the “‘lighting scheme,’” not the lack of lighting. (Ibid.)

              1
                 The text of the relevant American Jurisprudence Second section has
changed significantly and is now more equivocal than when Antenor was decided:
“There is authority to the effect that, in the absence of a statutory or charter provision to
the contrary, a municipality is generally under no duty to light its streets, even though it is
given the power to do so; thus, its failure to light them is not actionable negligence, and
will not render it liable in damages to a traveler who is injured solely by reason thereof.
Under some authority, a duty to light a street, and the consequent liability for the failure
to do so, may arise only if there is some peculiar condition rendering lighting necessary
in order to make the streets safe for travel. However, a governmental entity may be
found negligent in its lighting of a road, under certain circumstances.” (40 Am.Jur.2d
(2019) Highways, Streets, and Bridges, § 342, fns. omitted.)

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The court stated “it all amounts to the same thing” and posited “[t]he only cure for [the
alleged] defect is more lighting at the intersection[.]” (Ibid.)
              I do not agree. Plaintiffs’ argument in this case, like the one in Mixon, is
more than just a variant of the claim that a public entity is negligent for failing to provide
streetlights. They do not argue the crosswalk was dangerous simply because it was not
well lit. Rather, they fault the lighting configuration. Again, the alleged dangerous
condition here is the contrast between the lighted area at the south end of the crosswalk
and the dark area at the north end, which made it more difficult to perceive pedestrians in
the crosswalk. A contrast in lighting is not necessarily the same as a lack of lighting.
              Likewise, it is simply not true “[t]he only cure for such a defect is more
lighting . . . .” (Mixon, supra, 207 Cal.App.4th at p. 134.) There are cures for a contrast
in lighting which do not require more lighting. Depending on the precise problem in a
given case, alternatives could include, for example, reducing or eliminating artificial
lighting, trimming or modifying adjacent landscaping, and/or providing additional
devices to warn motorists of the presence of pedestrians.
              Thus, contrary to Mixon, a public entity can be liable for failing to provide
consistent lighting, even if it has no general obligation to provide lighting in the first
instance. (Cf. Teall v. City of Cudahy (1963) 60 Cal.2d 431, 434 [though city does not
have general duty to install traffic signals, “[i]t may be held liable if it created a
dangerous or defective condition in doing so”]; accord De La Rosa v. City of San
Bernardino (1971) 16 Cal.App.3d 739, 746.) And a public entity can be liable for failing
to ensure the interplay of natural conditions (e.g., tree growth) and artificial conditions
(e.g., lighting) does not, over time, render public property dangerous by creating a
substantial risk of injury for those using the property with due care. (See § 830 [defining
dangerous condition]; Bonanno v. Central Contra Costa Transit Authority (2003) 30
Cal.4th 139, 149, italics omitted [public property may be in a dangerous condition
“‘because of the design or location of the improvement, [or] the interrelationship of its

                                                6
structural or natural features’”]; Bakity v. County of Riverside (1970) 12 Cal.App.3d 24,
30 [condition of property adjacent to public property may render public property
dangerous if it exposes users to substantial risk of harm].)
              By following Mixon here, the majority incorrectly rejects the application of
the peculiar condition exception announced in Antenor. That the majority does so under
the guise of public policy, stating the Legislature should be the one to determine whether
cities may be liable for street light-related conditions, is particularly troublesome. The
Legislature acted more than 50 years ago when it established a public entity may be held
liable for injury caused by a dangerous condition of its property, and it specified what
constitutes a dangerous condition. (§§ 830, subd. (a), 835.) Since then, courts and juries
have been charged with determining, on a case-by-case basis, whether such a condition
existed and, if so, whether it led to injury.
              Finally, the City offered additional arguments why we should affirm the
summary judgment, including lack of notice to the City of the alleged dangerous
condition, lack of causation, existence of a trivial defect, statutory immunities (§§ 830.4,
830.8), and design immunity (§ 830.6). None of these arguments save the summary
judgment. The claimed immunities do not apply and there are triable issues of material
fact on the remaining matters as well.
              For all these reasons, the summary judgment should be reversed, and this
case should be allowed to proceed to trial on the merits as preferred by California law.



                                                    THOMPSON, J.




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