Filed 1/22/20

                             CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA



 FARID HEDAYATZADEH,                               D074690

          Plaintiff and Appellant,

          v.                                       (Super. Ct. No. 37-2017-00014136-
                                                   CU-PO-NC)
 THE CITY OF DEL MAR,

          Defendant and Respondent.



        APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline

M. Stern, Judge. Affirmed.

        Khashayar Law Group and Daryoosh Khashayar for Plaintiff and Appellant.

        Devaney Pate Morris & Cameron and William C. Pate for Defendant and

Respondent.



        Farid Hedayatzadeh (Hedayatzadeh) appeals following the trial court's summary

judgment in favor of the City of Del Mar (the City) in his lawsuit arising out of the death

of his 19-year-old son, who was struck by a train on an oceanfront bluff in Del Mar on
property owned by North County Transit District (NCTD). Specifically, Hedayatzadeh

contends that the trial court erred in granting summary judgment on his single cause of

action alleging a dangerous condition of public property based primarily on the City's

failure to erect any barriers to prevent pedestrians from accessing NCTD's train tracks.

We conclude that the trial court properly granted summary judgment, and we accordingly

affirm the judgment.

                                             I.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On the night of September 24, 2016, 19-year-old Javad Hedayatzadeh drove to Del

Mar with two friends.1 They parked at the end of 13th Street, a City street which

terminates at an ocean bluff.

       A railroad right-of-way owned by NCTD runs along the top of the ocean bluff,

perpendicular to the end of 13th Street. As stated in a land surveyor's declaration

submitted by the City, NCTD's right-of-way is 100 feet wide near 13th Street.2 Although

the record is not clear about where the City property ends and the NCTD right-of-way

begins, the parties agree that a sloped dirt embankment begins after the end of 13th Street



1       Unless otherwise noted, we base our recitation of the factual background on the
facts that the parties agreed upon as undisputed in the course of their briefing of the
summary judgment motion.

2      Hedayatzadeh appears to agree, as shown by map attached to the surveyor's
declaration, that the City property begins approximately 50 feet to both the west and east
of the center of the train tracks (amounting to a total 100 foot width of the right-of-way),
but he points out that the width may be less to the west in some places because of bluff
erosion.
                                             2
and leads down to the area where the train tracks are located. A guardrail on City

property prevents automobiles from continuing past the end of 13th Street to reach

NCTD's right-of-way, but pedestrians are able to walk around the guardrail to access

NCTD's right-of-way and the train tracks. It is common knowledge, and undisputed by

the parties, that members of the public frequently walk around the guardrail and access

NCTD's right-of-way to walk next to the train tracks on the ocean bluff.3 It is also

undisputed that, throughout the years, multiple train-related injuries, fatalities and near

misses have occurred on the tracks that run along the bluff through the City.

       On the night at issue, Javad4 and his friends walked around the guardrail at the

end of 13th Street, down an unimproved dirt embankment, and crossed the train tracks.

The group then walked northbound on the west side of the tracks to a spot where they sat

and smoked marijuana. They knew they were trespassing on NCTD property. At various




3      Hedayatzadeh points out that the City places a trash can at the end of 13th Street,
which he views as an acknowledgment by the City that people illegally enter the NCTD
right-of-way from 13th Street. The parties dispute whether the trash can is intended to
collect trash from people who illegally enter the NCTD right-of-way, or, as the City
contends, from people who travel to the end of 13th Street to watch the sunset. However,
the presence of the trash can is not relevant here because the City does not dispute that it
has notice that people access the NCTD right-of-way by walking around the guardrail at
the end of 13th Street.

4      For the sake of clarity we refer to Javad by his first name, and we intend no
disrespect by doing so.

                                              3
points along the railroad right-of-way, NCTD has installed signs stating "No

Trespassing," "Danger" and "Railroad Property."5

       Javad noticed a freight train coming from the south and told his friends that he was

going to use his phone to take a video "selfie" of himself next to the train. As Javad was

near the train tracks taking the selfie, he was struck by the train and killed.

       The location where Javad was struck by the train is more than 50 feet from the

City's property to the east and more than 40 feet from the City's property to the west. The

City does not perform any maintenance of the NCTD right-of-way and has no authority

to correct any defects on the NCTD property.

       After filing an unsuccessful claim under the Government Claims Act (Gov. Code,

§ 905),6 Javad's father, Hedayatzadeh, filed this lawsuit against the City, NCTD, and

BNSF Railway Company, which allegedly operated the freight train. As relevant here,

the operative first amended complaint alleged a single cause of action against the City for

dangerous condition of public property.7 As alleged in the first amended complaint,

"The property adjacent to the railroad tracks and right[-]of[-]way were . . . owned,

maintained, managed and controlled by [the City] . . . and by virtue of the proximity of


5      The public is able to access the beach from the City's streets at a legal railroad
crossing to the north at 15th Street without illegally trespassing on NCTD's property.

6     Unless otherwise indicated, all further statutory references are to the Government
Code.

7      The first amended complaint alleged a cause of action for dangerous condition of
public property against NCTD and causes of action for negligence and willful misconduct
against BNSF Railway Company.
                                               4
the adjacent property to the railroad tracks and its use to access recreational areas open to

the public by the public, the property adjacent to the railroad right[-]of[-]way was in [a]

dangerous condition as it exposed the using public to a substantial risk of injury when the

property was used in a reasonably foreseeable manner."

       The City filed a motion for summary judgment based on several independent

grounds: (1) as matter of law, the City's own property was not in a dangerous condition;

(2) the alleged dangerous condition of the City's property was not a proximate cause of

Javad's death; (3) to the extent the cause of action was based on failure to warn, the City

had no duty to warn of an obvious danger, and section 830.8 precludes liability for failure

to provide a warning sign;8 and (4) recovery is barred by the doctrine of primary

assumption of the risk.

       After considering the evidence and argument presented by the parties, the trial

court granted summary judgment, basing its ruling on the first ground identified by the

City. As the trial court explained, "The Court finds that Plaintiff has not met his burden

of showing a triable issue of material fact that the City created, enhanced, or intensified a

danger to the public. . . . Plaintiff's evidence, which formed the basis for the Court's

tentative ruling, demonstrates that the City was aware of pedestrians illegally accessing

the railroad right-of-way from the City's property at 13th Street in order [to] reach the

adjacent coastal bluffs. This fact does not show that a condition of the City's property



8      Section 830.8 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."
                                              5
increased or enhanced the risk of injury which arises from the occasional passing of

trains. Plaintiff has not submitted evidence demonstrating that a feature of 13th Street

encouraged users to trespass onto the right-of-way. Moreover, it is undisputed that a

legal railroad crossing was available just a few blocks away at 15th Street."9

       Hedayatzadeh appeals from the judgment.

                                               II.

                                        DISCUSSION

A.     Legal Standards Applicable to Review of a Summary Judgment

       Code of Civil Procedure section 437c, subdivision (c) provides that summary

judgment is to be granted when there is no triable issue of material fact and the moving

party is entitled to judgment as a matter of law. A defendant "moving for summary

judgment bears an initial burden of production to make a prima facie showing of the

nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield

Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant may meet this burden either by




9       In focusing on the issue of whether the City "created, enhanced, or intensified a
danger to the public," the trial court was apparently referring to the rule that " '[i]f the risk
of injury from third parties is in no way increased or intensified by any condition of the
public property . . . courts ordinarily decline to ascribe the resulting injury to a dangerous
condition of the property. In other words, there is no liability for injuries
caused solely by acts of third parties. . . . Such liability can arise only when third party
conduct is coupled with a defective condition of property.' " (Zelig v. County of Los
Angeles (2002) 27 Cal.4th 1112, 1137 (Zelig), italics added.) Although we understand
the trial court's reliance on that legal principle, we will explain in our analysis that the
case law concerning public liability due to hazards on adjacent property is the more
directly applicable authority in this case.
                                               6
showing that one or more elements of a cause of action cannot be established or by

showing that there is a complete defense. (Ibid.)

       If the defendant's prima facie case is met, the burden shifts to the plaintiff to show

the existence of a triable issue of material fact with respect to that cause of action or

defense. (Aguilar, supra, 25 Cal.4th at p. 849; Silva v. Lucky Stores, Inc. (1998) 65

Cal.App.4th 256, 261.) "[T]o meet that burden, the plaintiff 'may not rely upon the mere

allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts

showing that a triable issue of material fact exists as to that cause of action . . . .' "

(Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) Ultimately, the moving party

"bears the burden of persuasion that there is no triable issue of material fact and that he is

entitled to judgment as a matter of law." (Aguilar, at p. 850.)

       We review a summary judgment ruling de novo to determine whether there is a

triable issue as to any material fact and whether the moving party is entitled to judgment

as a matter of law. (Certain Underwriters at Lloyd's of London v. Superior Court (2001)

24 Cal.4th 945, 972.) " 'Since defendant[ ] obtained summary judgment in [its] favor,

"we review the record de novo to determine whether [it has] conclusively negated a

necessary element of the plaintiff's case or demonstrated that under no hypothesis is there

a material issue of fact that requires the process of trial." ' " (Saelzler v. Advanced Group

400 (2001) 25 Cal.4th 763, 767.)




                                                7
B.     The Law Governing Liability for a Dangerous Condition of Public Property

       The only cause of action pled against the City alleged a dangerous condition of

public property, which is a basis for liability set forth in the Government Claims Act and

governed by specific statutory standards.

       " '[A] public entity is not liable for injuries except as provided by statute (§ 815)

and . . . section 835 sets out the exclusive conditions under which a public entity is liable

for injuries caused by a dangerous condition of public property. "[T]he intent of the

[Government Claims Act] is not to expand the rights of plaintiffs in suits against

governmental entities, but to confine potential governmental liability to rigidly delineated

circumstances: immunity is waived only if the various requirements of the act are

satisfied." ' " (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129.)

       Section 835 sets forth the following requirements for liability based on a

dangerous condition of public property:

       "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." (§ 835.)




                                              8
       "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 (Cerna).) As stated in the relevant statute, "[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." (§ 830.2.)10 Thus, although "[t]he existence of a

dangerous condition ordinarily is a question of fact, . . . the issue may be resolved as a

matter of law if reasonable minds can come to only one conclusion." (Zelig, supra, 27

Cal.4th at p. 1133, italics added.)

C.     As a Matter of Law, No Dangerous Condition Exists on the City's Property

       As we have explained, it is undisputed that the railroad right-of-way, which

consists of the train tracks and an area approximately 50 feet to both the west and east of




10     Similarly, section 830, subdivision (a) defines "dangerous condition" 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."
                                               9
the tracks is owned and controlled by NCTD, not by the City. Although the exact

boundaries are not clear from the record, the City's property terminates somewhere near

the guardrail that is at end of the 13th Street. Hedayatzadeh takes the position that the

City's property poses a dangerous condition because (1) it is adjacent to NCTD's right-of-

way containing the train tracks; (2) the train tracks pose a danger to trespassers; and

(3) the City has not taken any action, such as constructing a fence at the location of the

guardrail at the end of 13th Street, to prevent pedestrians from walking around the

guardrail and trespassing on NCTD's train tracks. The City argues that summary

judgment was properly granted because, as a matter of law under the undisputed facts, the

lack of a barrier on the City's property preventing the public from accessing NCTD's

right-of-way does not give rise to a dangerous condition of public property.

       We begin our analysis with the undisputed principle that—to some extent and

under certain circumstances—a hazardous condition on an adjacent property may give

rise to liability for a dangerous condition of public property. The California Law

Revision Commission comments to section 830 explain the circumstances under which

liability may arise due to a hazardous condition on an adjacent property. " ' "Adjacent

property" as used in the definition of "dangerous condition" refers to the area that is

exposed to the risk created by a dangerous condition of the public property. . . . [¶] . . .

A public entity may be liable only for dangerous conditions of its own property. But its

own property may be considered dangerous if it creates a substantial risk of injury to

adjacent property or to persons on adjacent property; and its own property may be

considered dangerous if a condition on the adjacent property exposes those using the

                                             10
public property to a substantial risk of injury.' " (Bonanno v. Central Contra Costa

Transit Authority (2003) 30 Cal.4th 139, 147, 148 (Bonanno), quoting Cal. Law Revision

Com. com., reprinted at 32 West's Ann. Gov. Code (1995 ed.) foll. § 830, p. 299.)

       The Law Review Commission comment provides examples of situations in which

liability may arise because the public property itself contains a hazard that injures

someone on an adjacent property. "A tree located on public property may have a decayed

limb overhanging private property and creating a hazard to that property and the persons

on it. Explosives on public property may create a hazard to a wide area of private

property adjacent to the public property." (Cal. Law Revision Com. com., 32 pt. 2 West's

Ann. Gov. Code (2012 ed.) foll. § 830, p. 7.)

       Although not illustrated by the Law Review Commission comments, case law

illustrates the circumstances under which liability may arise in the converse situation—

present here—where a hazard on an adjacent property gives rise to liability for a

dangerous condition of public property when persons using the public property are

exposed to injury. Referring to adjacent hazards encountered by motorists during use of

a public highway, our Supreme Court has explained that "a public entity can be held

liable for an accident caused by a condition that exists on property adjacent to a public

highway if the condition ' "is so connected with or in such proximity to the traveled

portion of the highway as to render it unsafe to those traveling thereon." ' " (Carson v.

Facilities Development Co. (1984) 36 Cal.3d 830, 841, italics added, citing Bakity v.

County of Riverside (1970) 12 Cal.App.3d 24, 30 [trees on adjacent property created a

dangerous condition of public property because they obstructed motorists' view of

                                             11
approaching vehicles on the county highway]; see also Rose v. Orange County (1949) 94

Cal.App.2d 688, 691 [a county could be liable for a dangerous unprotected ditch along a

state road that intersected a state road when it did not install a stop sign or warn of the

ditch for drivers proceeding directly from the county road].) Similarly, pedestrians are

subjected to a dangerous condition of public property when a public walkway abuts a

dangerous condition on adjacent property that pedestrians might unwittingly fall into

while using the public walkway. (Marsh v. City of Sacramento (1954) 127 Cal.App.2d

721, 724 [demolition of a private building adjacent to a city sidewalk left an unprotected

eight-foot drop off from the sidewalk]; Jordan v. City of Long Beach (1971) 17

Cal.App.3d 878 [a hole and protruding pipe located directly adjacent to city pavement

posed a dangerous condition of public property to pedestrians using the city pavement].)

       Similarly, public entities have been held liable for undertaking an affirmative act,

such as deciding to locate a public facility in a certain place or providing a particular

means of access to an adjacent hazard, that put users of the public property into danger

from adjacent property. Three cases illustrate this principle.

       In Bonanno, supra, 30 Cal.4th 139, a transit authority was liable for a dangerous

condition of public property because it chose to locate a bus stop at a location that

encouraged bus patrons to cross a county street at a dangerous location to reach the bus

stop, although a less dangerous location was available. (Id. at p. 151.) Relying on the

principle that "hazards present on adjoining property may create a dangerous condition of

public property when users of the public property are necessarily exposed to those risks"

(id. at p. 149), Bonanno explained that even though the hazardous traffic was on the

                                              12
adjacent county street, the transit authority "owned and controlled its own bus stop, and a

condition of that property, its physical situation, caused users of the bus stop to be at risk

from the immediately adjacent property." (Id. at p. 151.)

          Next, in Branzel v. City of Concord (1966) 247 Cal.App.2d 68, 75, a city lot

designated for flying model airplanes constituted a dangerous condition of public

property because the city chose to locate the flying field adjacent to electric power lines

that posed a risk of electrocution if a model airplane got out of control and contacted the

power lines while a person was holding the long wire line attached to the model airplane.

Branzel explained, "While the City did not maintain or control the power lines, it did

maintain the flying field in a location so close to them that[,] in the light of the known use

of the field[,] the involvement of the field with the lines could be reasonably anticipated."

(Ibid.)

          Finally, in Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292

(Joyce), a junior high school principal ordered a hole cut in a fence next to a crosswalk on

a city street to encourage students to cross at that intersection, even though the

intersection was dangerous, especially after the city increased the speed limit. (Id. at

pp. 296, 300.) Joyce held that the open school yard gate was a dangerous condition.

"Although [the school district] did not control the crosswalk, it did control whether an

opening in the fence should be made. The open gate was built next to the crosswalk to

encourage students to cross at an uncontrolled intersection. It diverted children from a

safer, signal-controlled intersection less than 500 feet away." (Id. at p. 299, fn. omitted.)

As Joyce explained, liability for a dangerous condition of public property was warranted

                                              13
because the school district "was aware of the dangerous intersection but insisted on

keeping the gate open after City increased the speed limit" (id. at p. 300), and "a

reasonable trier of fact could find that the open gate was a dangerous condition that could

have been remedied by simply closing the fence opening and directing students to cross

at the signal." (Id. at p. 299.)

       However, case law does not extend liability to circumstances in which the public

entity has not engaged in any affirmative act regarding the use of its property (such as

locating a public facility in a dangerous place or deciding to create an opening in a fence

to entice children to cross a dangerous intersection), but has merely failed to erect a

barrier to prevent users of the public property from leaving the public property and

willfully accessing a hazard on adjacent property.11 Two cases are illustrative.

       First, in Avey v. Santa Clara County (1968) 257 Cal.App.2d 708, the city owned

Fremont Avenue, on which a grocery store was located. (Id. at p. 710.) Children waiting

at a bus stop on state-owned El Camino Real would sometimes run across that street and

traverse a state-owned traffic island, and then cross Fremont Avenue to buy treats at the



11      In contrast, when the hazard exists on the public property itself, case law has
approved the principle that a public entity may be required to erect a barrier to prevent
the public from accessing the hazard. (Constantinescu v. Conejo Valley Unified School
Dist. (1993) 16 Cal.App.4th 1466, 1474-1475 [school district had a duty to erect barriers
to protect against danger to children on school property from parents driving in crowded
and chaotic school parking lot]; Mamola v. State of California ex rel. Dept. of
Transportation (1979) 94 Cal.App.3d 781, 791-792 [declining to conclude as a matter of
law that the state did not have a duty to erect a barricade to prevent drivers on a county
road from driving into a state-owned ravine]; Ducey v. Argo Sales Co. (1979) 25 Cal.3d
707, 719 [the state was liable for failing to provide a median barrier on a freeway to
protect from injury from oncoming cars].)
                                             14
grocery store. (Ibid.) In returning to the bus stop, the children would reverse the trip,

running across Fremont Avenue, the traffic island and El Camino Real to the bus stop.

(Ibid.) After children were twice killed by automobiles on El Camino Real when

returning to the bus stop from the grocery store, plaintiffs alleged that the city was liable

for a dangerous condition of public property because it did not erect a barricade or take

other measures to prevent children from crossing from Fremont Street to the county-

owned traffic island and El Camino Real. (Id. at pp. 710-712.) Avey rejected plaintiffs'

theory of liability as a matter of law, holding that "such a barricade was not required

under section 835 in the exercise of ordinary care by defendants to maintain its street in a

reasonably safe condition." (Id. at p. 713.)

       Second, Durham v. City of Los Angeles (1979) 91 Cal.App.3d 567, rejected

liability in a case involving an injury that incurred on train tracks accessed from a city

street. In Durham a boy was either trying to hop a train or was throwing rocks at a train

when he was struck by the train and injured. (Id. at p. 570.) The city maintained a

crosswalk near the accident, which ended at the easement owned by the Southern Pacific

Railway, where the railroad tracks were located. (Id. at p. 575.) A lawsuit against the

city alleged that the crosswalk constituted a dangerous condition of public property

because the city "should have given appropriate warning or erected and maintained

suitable barriers since it had knowledge of the existence of the dangerous condition (the

train) adjacent to its property." (Id. at p. 576.) Durham rejected liability as a matter of

law stating, "The City's property in the case at bench was in no way defective and could

not be considered dangerous except in relation to the railroad tracks. As in Avey . . . we

                                               15
find no duty on the political entity to erect some sort of barricade in order to maintain its

street in a reasonably safe condition." (Id. at p. 577.)

       After having reviewed the relevant case law concerning public liability for hazards

on an adjacent property, we conclude that this case is analogous to Avey and Durham

where, as a matter of law, public liability does not arise for failure to erect a barrier

preventing the public from willfully accessing a hazard on an adjacent property. Here,

based on the principle illustrated in Avey and Durham, the City is not liable as a matter of

law for merely failing to erect a barrier at the site of the guardrail to prevent pedestrians

from choosing to enter a hazardous area on NCTD's adjacent right-of-way.

       Unlike in the cases where public liability arose due to a hazardous condition on an

adjacent property, the City did not, in failing to install a pedestrian barrier at the

guardrail, create any condition of public property that necessarily endangered members of

the public who use the City streets. Persons who travel to the end of 13th Street are not

required to walk toward the train tracks and encounter any hazard on NCTD's right-of-

way. Instead, a person must make a decision to walk around the guardrail, down an

embankment and toward the train tracks before encountering any hazard. Further, unlike

in Joyce, supra, 110 Cal.App.4th 292 where children were encouraged to enter a

dangerous intersection, and Bonanno, supra, 30 Cal.4th 139, where the location of the

bus stop encouraged people to cross a dangerous street, nothing about the City's property




                                               16
entices or encourage members of the public to put themselves in danger by entering a

hazardous area on adjacent property.12

       Hedayatzadeh relies on Holmes v. City of Oakland (1968) 260 Cal.App.2d 378,

381, which concerned the issue of whether a city could be liable due to the presence of a

railroad track adjacent to a public street. However, as we will explain, Holmes is

inapposite because children were involved and because the hazardous train tracks were

directly adjacent to the city street. In Holmes an elementary school was near a public

street on which railroad tracks were located. Many students crossed the tracks on their

way home from school and were attracted to playing on or around the trains. The

plaintiff alleged that the city should have remedied "this attractive and dangerous



12      Hedayatzadeh argues that the City is liable for a dangerous condition of public
property because certain city officials, at some point, may have taken the position that
trespassers on the NCTD right-of-way should not receive citations from NCTD under
most circumstances. According to Hedayatzadeh, this position "encouraged" pedestrians
to trespass on the right-of-way. However, the argument fails because, as the case law we
have cited establishes, a public entity is liable for a dangerous condition on an adjacent
public property only if some physical aspect of the public property itself (such as the
location a bus stop or an opening in a school fence) necessarily brings a user of that
property into contact with the danger on the adjacent property or entices the user of the
public property to encounter the adjacent hazard. "A plaintiff's allegations, and
ultimately the evidence, must establish a physical deficiency in the property itself.
[Citation] 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, supra, 161 Cal.App.4th at
pp. 1347-1348, first italics in original.) Although a City position asking NCTD to refrain
from issuing citations to people trespassing on NCTD's right-of-way might make
trespassing more common if NCTD heeds the City's suggestion, the City's position does
not support a cause of action for a dangerous condition of public property against the City
because that position is not a physical aspect of the public property itself and does not
concern the City's property in any way.
                                            17
condition . . . by imposing restrictions on the operation of the trains, or by providing

guards or other safeguards, at the time when children were on their way home from

school." (Id. at p. 381.) The court reversed the trial court's order sustaining a demurrer,

and held that the city could be liable for a dangerous condition of public property. "[I]f

the City does not own or control the railroad right-of-way it is nevertheless liable to

plaintiff on the basis that the City's public property consisting of that portion of Lowell

Street running along the right-of-way is dangerous because a condition on the adjacent

right-of-way exposes those using the public property to a substantial risk of injury." (Id.

at p. 389.) "In the light of the allegations that children going home from school on

Lowell Street customarily were attracted to the trains and railroad cars and played about

them, it is not unreasonable to conclude that children were foreseeable users of the

railroad right-of-way, that such use and the danger inherent therein were reasonably

foreseeable, that the City was required to take reasonable precautions to protect children

from that risk." (Id. at p. 387.) Here, in contrast, the use of the City's street does not

subject a member of the public to the same type of immediate danger from an adjacent

property as was at issue in Holmes. NCTD's train tracks are not directly adjacent to a

City street and are not in the normal route that children take home from school. Instead,

in this case, to incur any kind of injury on the train tracks, pedestrians (whom we

necessarily assume to be reasonable adults) must decide to go around a guardrail, down

an embankment and over a wide area of NCTD property to reach the train tracks.




                                              18
      In sum, we conclude that, as a matter of law, the City's property at the end of 13th

Street does not constitute a dangerous condition of public property even though the City

has not taken action to prevent pedestrians from accessing the train tracks on NCTD's

adjacent right-of-way by walking around the guardrail at the end of 13th Street.

Accordingly, the trial court properly granted summary judgment in favor of the City. 13

                                     DISPOSITION

      The judgment is affirmed.



                                                                                   IRION, J.

WE CONCUR:




BENKE, Acting P. J.




GUERRERO, J.




13     As we conclude that summary judgment is warranted on the ground that the City's
property does not constitute a dangerous condition as a matter of law, we need not and do
not address the other possible grounds for summary judgment discussed in the parties'
briefing.
                                            19
