Filed 8/26/15 Black v. State of California CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

ROBERT BLACK et al.,
                                                                                           F069720
         Plaintiffs and Appellants,
                                                                              (Super. Ct. No. CV278304)
                   v.

STATE OF CALIFORNIA et al.,                                                              OPINION

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
         Alderlaw, Michael Alder, Jennifer P. Burkes and Jefferson Saylor for Plaintiffs
and Appellants.
         Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Chief Attorney
General, Kristin G. Hogue, Assistant Attorney General, Joel A. Davis and Benjamin
Barnouw, Deputy Attorneys General, for Defendants and Respondents.
                                                        -ooOoo-
       This case arises from an automobile accident that occurred at night on a four-lane
highway when Robert Black stopped his car in the left lane (fast lane) next to a California
Highway Patrol (CHP) car that was stopped in the number two lane with its emergency
lights activated. While stopped, appellants’ car was hit from behind by another car.
       Appellants challenge the grant of summary judgment in favor of the State of
California and CHP Officer Jonathan Pope on appellants’ complaint for negligence and
dangerous condition of public property. According to appellants, triable issues of
material fact exist regarding whether Officer Pope was negligent when he blocked one
lane of the highway and whether Officer Pope created a dangerous condition on public
property.
       Summary judgment was properly granted. Officer Pope did not owe appellants a
duty of care under these circumstances and the highway was not defective. Therefore,
the judgment will be affirmed.
                                    BACKGROUND
       On a February night at approximately 9:45, Robert Black was driving on State
Route 14, a four-lane highway, with his wife, Rachel, and three children as passengers.
While driving in the left lane, Robert noticed a CHP vehicle was stopped in the right lane
with its overhead emergency lights activated. Robert pulled up next to the CHP vehicle
and stopped. Robert rolled the passenger window down and shouted to CHP Officer
Pope to get his attention. Around 10 to 15 seconds after he stopped, Robert’s car was hit
from behind by another car. Robert, Rachel and two of their children, Logan and
Landen, were injured in the collision. Robert and Rachel’s daughter was killed.
       Pope was stopped in the right lane to prevent vehicles from traveling in that lane
because there was a person threatening to commit suicide by jumping off an overpass
approximately 200 feet ahead. This suicidal person was outside of the chain link fence
along the overpass but was being restrained by a third party standing inside the fence.



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This third party had reached through the fence and was holding the suicidal person’s
clothes.
       At the time of the collision, Pope had just recently arrived at the scene. When
Robert stopped, Pope was searching in his patrol car’s trunk for flares to put out to warn
traffic. By the time Robert got Pope’s attention, the collision was imminent.
       Appellants filed the underlying complaint alleging causes of action for personal
injury, dangerous condition of public property and wrongful death. These causes of
action were premised on the theory that Pope negligently caused Robert to stop his car in
the left lane.
       Respondents moved for summary judgment. The trial court granted respondents’
motion on the ground that Pope owed no duty of care to appellants.
                                       DISCUSSION
1.     Standard of review.
       A defendant who moves for summary judgment under Code of Civil Procedure
section 437c, must either negate a necessary element of the plaintiff’s cause of action or
establish a complete defense to that cause of action. The moving party must demonstrate
that a material question of fact requiring examination by the trial court does not exist
under any possible hypothesis within the reasonable purview of the allegations of the
complaint. If the moving defendant satisfies this obligation, the burden shifts to the
plaintiff to produce evidence creating a triable issue of material fact. (Code Civ. Proc.,
§ 437c, subd. (p)(2); Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1594.)
       In evaluating the ruling under Code of Civil Procedure section 437c, the appellate
court must independently examine the record to determine whether triable issues of
material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In
performing this de novo review, the court views the evidence in a light favorable to the
plaintiff as the losing party, liberally construing the plaintiff’s evidentiary submission
while strictly scrutinizing the defendant’s own showing and resolving any evidentiary

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doubts or ambiguities in the plaintiff’s favor. (Id. at p. 768.) Moreover, the trial court’s
reasoning is irrelevant. The legal effect of the undisputed facts must be scrutinized
independently and the judgment affirmed on any ground supported by the record.
(Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 140.)
2.     Officer Pope did not owe appellants a duty of care.
       To establish negligence, a plaintiff must show that (1) the defendant owed the
plaintiff a legal duty; (2) the defendant breached that duty; and (3) the breach was a
proximate cause of the plaintiff’s injuries. (Gilmer v. Ellington (2008) 159 Cal.App.4th
190, 195 (Gilmer).) The absence of any one of these elements is fatal to a negligence
claim. (Ibid.)
       Our first inquiry is whether Pope owed a duty of care to appellants. We decide
this issue as a matter of law. The question of whether respondents are statutorily immune
from liability does not arise unless Pope owed a duty of care to appellants and would be
liable in the absence of such immunity. (Greyhound Lines, Inc. v. Department of
California Highway Patrol (2013) 213 Cal.App.4th 1129, 1135-1136 (Greyhound).)
       In general, all people are required to use ordinary care to prevent others from
being injured as a result of their conduct. (Gilmer, supra, 159 Cal.App.4th at pp. 195-
196.) This legal duty is owed to the class of persons who it is reasonably foreseeable
may be injured as the result of this conduct. (Lugtu v. California Highway Patrol (2001)
26 Cal.4th 703, 716.) Additionally, “one’s general duty to exercise due care includes the
duty not to place another person in a situation in which the other person is exposed to an
unreasonable risk of harm through the reasonably foreseeable conduct (including the
reasonably foreseeable negligent conduct) of a third person.” (Ibid.) However, in the
absence of a special relationship, there is no duty to either control the conduct of another
or come to the aid of another. (Williams v. State of California (1983) 34 Cal.3d 18, 23;
Greyhound, supra, 213 Cal.App.4th at p. 1136.) These rules apply to law enforcement
personnel, including CHP officers. (Greyhound, supra, 213 Cal.app.4th at p. 1136.)

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       “[T]o create a special relationship and a duty of care, there must be evidence that
CHP ‘“made misrepresentations that induced a citizen’s detrimental reliance [citation],
placed a citizen in harm’s way [citations], or lulled a citizen into a false sense of security
and then withdrew essential safety precautions.”’” (Greyhound, supra, 213 Cal.App.4th
at p. 1136.) Thus, affirmative conduct or misfeasance on the CHP officer’s part that
induces reliance or changes the risk of harm is required. “Nonfeasance that leaves the
citizen in exactly the same position that he or she already occupied cannot support a
finding of duty of care.” (Ibid.)
       The foreseeability of harm to the plaintiff is the chief factor in a duty analysis.
(Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1253.) Other
considerations include the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant’s conduct and the injury, the moral
blame attached to the defendant’s conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the community of imposing
liability, and the availability, cost, and prevalence of insurance for the risk involved. (Id.
at p. 1252.) However, if the court concludes the injury was not foreseeable, there was no
duty and thus, no need to analyze the remaining considerations. (Id. at p. 1253.)
       The emergency Officer Pope responded to was the hazard to motorists caused by a
person threatening to commit suicide by jumping off an overpass onto the right lane of
the highway. Appellants acknowledge that this peril was not created by Officer Pope.
However, appellants contend that when Officer Pope blocked the right lane and activated
his emergency overhead lights in response to this hazard he increased the risk of harm.
According to appellants, Pope’s actions “had the predictable result of directing cars to
change lanes and stop” and thus caused appellants to respond by coming to a stop
adjacent to Pope’s vehicle. Therefore, appellants assert, there is a triable issue of
material fact as to whether Officer Pope was negligent.



                                              5.
       Contrary to appellants’ position, Officer Pope’s response to the hazard created by
the suicidal person on the overpass did not increase the risk of harm. Although the
emergency lights did cause cars to change lanes, it was not foreseeable that a car would
stop alongside Pope’s patrol car thereby blocking the entire highway. In fact, Robert
Black’s response to the emergency lights violated Vehicle Code section 21809. Under
that section, a person driving a vehicle on a freeway approaching a stationary authorized
emergency vehicle displaying emergency lights must approach with due caution and pass
the emergency vehicle at a reasonable and prudent speed absent other direction by a
peace officer. It was reasonable for Officer Pope to expect drivers to comply with the
law, i.e., slow down and pass his stationary vehicle, not stop. Accordingly, Officer Pope
did not engage in any affirmative conduct that increased the risk to appellants. Rather,
the accident occurred because of Robert Black’s improper and unforeseeable response to
the emergency lights.
       Further, Officer Pope did not make misrepresentations that induced appellants’
detrimental reliance, place appellants in peril, or lull appellants into a false sense of
security. He did not give any indication to appellants that they should stop. Rather, Pope
was not even aware that appellants were stopped and trying to get his attention until the
collision was imminent. Thus, there was no special relationship between Pope and
appellants. Therefore, Pope did not owe appellants a duty of care. Since Pope is not
liable for appellants’ injuries, we need not reach the immunity issues. (Greyhound,
supra, 213 Cal.App.4th at p. 1137.)
3.     The accident was not caused by a dangerous condition on public property.
       Appellants contend that Officer Pope created a dangerous condition on public
property when he blocked the right lane and activated the overhead emergency lights.
According to appellants, the existence of this dangerous condition is a question of fact
and therefore summary judgment should not have been granted on this cause of action.



                                               6.
       “A ‘dangerous condition’ … is ‘a condition of property that creates a substantial
… risk of injury when such property or adjacent property is used with due care’ in a
‘reasonably foreseeable’ manner.” (Bonanno v. Central Contra Costa Transit Authority
(2003) 30 Cal.4th 139, 147.) However, liability for maintaining public property in a
dangerous condition depends on the existence of some defect in the property itself and the
existence of a causal connection between that defect and the plaintiff’s injury. (Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1138 (Zelig).) Thus, the plaintiff’s
evidence must establish a physical deficiency in the property itself. (Cerna v. City of
Oakland (2008) 161 Cal.App.4th 1340, 1347.) “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.”
(Id. at pp. 1347-1348.) Third party conduct will not be characterized as a dangerous
condition absent some concurrent contributing defect in the property itself. (Zelig, supra,
27 Cal.4th at p. 1135.)
       Here, appellants argue that Officer Pope’s conduct in blocking the right lane of the
highway created a dangerous condition. Appellants do not allege any physical defect in
the highway that contributed to the collision. Therefore, as a matter of law, Officer Pope
did not create a dangerous condition.
4.     The trial court did not err in sustaining respondents’ evidentiary objections.
       In opposing respondents’ summary judgment motion, appellants submitted an
expert witness declaration from Edward R. Fincel. In this declaration, Fincel made
references to the CHP policy manuals. Appellants also referred to the CHP policy
manuals in their separate statement of material facts. Respondents objected to all the
CHP policy manual references on the ground that these manuals were not before the
court. The trial court sustained these objections.



                                              7.
       Appellants note that policy manuals may be considered by the trier of fact in
determining whether an officer was negligent, although they cannot establish the standard
of care. (Lugtu v. California Highway Patrol, supra, 26 Cal.4th at p. 720.) Here,
however, appellants did not submit or authenticate the CHP policy manuals. Generally,
oral testimony is not admissible to prove the content of a writing. (Evid. Code, § 1523,
subd. (a).) Accordingly, any opinion based on the manuals had no evidentiary basis and
thus no evidentiary value. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742.)
Therefore, the trial court did not abuse its discretion in sustaining respondents’
evidentiary objections.
                                      DISPOSITION
       The judgment is affirmed. Costs on appeal are awarded to respondents.

                                                                  _____________________
                                                                        LEVY, Acting P.J.
WE CONCUR:


 _____________________
KANE, J.


 _____________________
POOCHIGIAN, J.




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