Filed 7/24/14 Barnett v. City of Desert Hot Springs CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



SHELIA BARNETT,

         Plaintiff and Appellant,                                        E054982

v.                                                                       (Super.Ct.No. RIC511421)

CITY OF DESERT HOT SPRINGS,                                              OPINION

         Defendant and Respondent.

BERTHRAM BERRY NWENE,

         Plaintiff and Appellant,                                        (Super.Ct.No. INC081790)

v.

CITY OF DESERT HOT SPRINGS,

         Defendant and Respondent.




         APPEAL from the Superior Court of Riverside County. John G. Evans, Judge.

Reversed.




                                                             1
       Law Offices of Armen M. Tashjian, Armen M. Tashjian and Daniel Setareh for

Plaintiffs and Appellants.

       Meyers, Nave, Riback, Silver & Wilson, Rachel Wagner, Kevin E. Gilbert; Graves

& King and Harvey W. Wimer III for Defendant and Respondent.1

                                   I. INTRODUCTION

       Plaintiffs and appellants, Berthram Berry Nwene and Shelia Barnett, appeal from

the trial court’s granting of the motion for summary judgment of defendant and

respondent, City of Desert Hot Springs (the City).

       The record on appeal can be characterized as “meager,” at best. From plaintiffs’

pleadings it would appear that plaintiffs’ daughter, age 13, was struck and killed by a hit-

and-run motorist as she was walking to school on the dirt shoulder of Palm Drive.2

Plaintiffs’ complaint appears to focus on the basic contention that Palm Drive was

dangerous at the time of the accident, because there was no improved pedestrian sidewalk

running parallel to and adjacent to the northbound lanes of Palm Drive.

       At the motion for summary judgment, the City submitted a traffic collision report,

a declaration by a sergeant of the City’s police department, authenticating 11 photographs


       1  The law firm of Graves & King and Harvey W. Wimer III substituted into this
case for the purpose of oral argument only.

       2 From the evidence submitted on the City’s motion for summary judgment, it is
unclear as to whether plaintiffs’ decedent was walking on the paved portion of the
roadway, the dirt shoulder, or in an area well removed from the roadway. By way of the
undisputed facts, however, plaintiffs’ decedent was walking on the dirt shoulder of the
roadway.

                                             2
of the roadway and adjacent dirt shoulder and generally describing the roadway and

weather conditions at the time of the accident, a declaration of the commander of the

police department describing average traffic volume and accident history for Palm Drive

in the years preceding the accident, and the declaration of Timothy Wassil in which he

attempts to lay the foundation for the application of the design immunity3 relative to a

1999 plan and design of the roadway. In opposition, plaintiffs submitted the declaration

of Alex Bias, a former mayor of the City. The declaration, in essence, sets forth that on

numerous occasions he expressed concerns about the dangerousness of Palm Drive

because of the failure of the City to provide sidewalks for the protection of pedestrians.

       Each side objected to the other’s evidence. As for the City’s evidence, the trial

court sustained plaintiffs’ objections to the traffic collision report and the declaration of

Wassil with the attached plan and design. The City’s objections to the declaration of

Alex Bias were sustained.

       As a result of the court’s evidentiary rulings, the City’s evidence consisted of 11

photographs of the roadway and adjacent dirt shoulder with a general description of the

roadway and an accident history of the roadway showing no similar accidents. Plaintiffs

were left with no opposing evidence. The court granted the City’s motion, finding no

triable issue of material fact as to the dangerousness of the roadway.




       3
       Government Code section 830.6. All further statutory references are to the
Government Code unless otherwise indicated.

                                               3
       On appeal, plaintiffs make three arguments: (1) the City failed to meet its initial

burden of production so as to shift the burden to plaintiffs to demonstrate the existence of

a triable issue of material fact; (2) plaintiffs’ evidence created a triable issue of material

fact;4 and (3) the court erred in not granting a continuance of the hearing pursuant to

Code of Civil Procedure section 437c, subdivision (h).

       We agree with plaintiffs that the City failed in its initial burden of production; as a

result, the burden never shifted to plaintiffs.5

                                       II. ANALYSIS

A. Dangerous Condition of Public Property

       A governmental entity is liable for an injury caused by its property if at the time of

the injury: (1) the property was in a dangerous condition; (2) the injury was proximately

caused by the dangerous condition; (3) the dangerous condition created a reasonably

foreseeable risk of the kind of injury which was incurred; and (4) the dangerous condition

was negligently or wrongfully created by an employee of the entity, or the entity had

       4 Within this, plaintiffs argue that the court erred in sustaining the City’s
objections to the declaration of Bias. We do not address this argument because plaintiffs
have failed to properly seek review of these rulings. “It is appellant’s ‘burden on appeal
to affirmatively challenge the trial court’s evidentiary ruling, and demonstrate the court’s
error.’ [Citation.] While plaintiffs on appeal explicitly state that the trial court erred in
sustaining the objections to the . . . declaration, they fail ‘to identify the court’s
evidentiary ruling as a distinct assignment of error, and there is no separate argument
heading or analysis of the issue.’ [Citations.]” (Salas v. Department of Transportation
(2011) 198 Cal.App.4th 1058, 1074.)

       5 Because we agree with plaintiffs on their initial argument we do not address
whether the court erred in not granting plaintiffs a continuance under Code of Civil
Procedure section 437c, subdivision (h).

                                               4
actual or constructive knowledge of the dangerous condition a sufficient time ahead of

the injury so as to take measures to protect against the dangerous condition. (§ 835.)

       For the property to be considered in a “dangerous condition,” it must create “a

substantial (as distinguished from a minor, trivial or insignificant) risk of injury when

such property . . . is used with due care in a manner in which it is reasonably foreseeable

that it will be used.” (§ 830, subd. (a).)

       “The qualification that the property is dangerous only when used with due care

does not require the plaintiff to prove due care on the part of the third party . . . involved

in the plaintiff’s injury. Rather, the statute means that the condition is dangerous if it

creates a substantial risk of harm when used with due care by the public generally, as

distinguished from the particular person charged as concurrent tortfeasor.” (Murrell v.

State of California ex rel. Dept. Pub. Wks. (1975) 47 Cal.App.3d 264, 267.) “[I]f the

condition of the property was such that it created a substantial risk of injury to a person

using the property with due care, an injured plaintiff is not required to prove that the

driver of the third party vehicle . . . was exercising due care at the time of the injury.

That is, the third party’s negligent use does not negate the existence of a dangerous

condition. . . . What we must determine therefore is whether in the abstract the factual

situation in the case at bench could be found by the finder of fact to have created a

dangerous condition without regard to the specific conduct of [the third party driver] or

the plaintiff on this particular occasion.” (Mathews v. State of California ex rel. Dept. of

Transportation (1978) 82 Cal.App.3d 116, 121; see Ducey v. Argo Sales Co. (1979) 25


                                               5
Cal.3d 707, 718-719 [lack of median barrier created a substantial risk of injury even in

the absence of negligent conduct].)

       ‘“Whether property is in a dangerous condition often presents a question of fact,

but summary judgment is appropriate if the trial or appellate court, viewing the evidence

most favorably to the plaintiff, determines that no reasonable person would conclude the

condition created a substantial risk of injury when such property is used with due care in

a manner which is reasonably foreseeable that it would be used. [Citations.]’ [Citation.]”

(Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234.)

B. Summary Judgment

       A trial court properly grants summary judgment when there are no triable issues of

material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.

Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide

courts with a mechanism to cut through the parties’ pleadings in order to determine

whether, despite their allegations, trial is in fact necessary to resolve their dispute.

[Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

       A moving party defendant is entitled to summary judgment if it establishes a

complete defense to the plaintiff’s causes of action, or shows that one or more elements

of each cause of action cannot be established. (Aguilar v. Atlantic Richfield Co., supra,

25 Cal.4th at p. 849.) A moving party defendant bears the initial burden of production to

make a prima facie showing that no triable issue of material fact exists. Once the initial

burden of production is met, the burden shifts to the responding party plaintiff to


                                               6
demonstrate the existence of a triable issue of material fact. (Id. at pp. 850-851.) From

commencement to conclusion, the moving party defendant bears the burden of persuasion

that there is no triable issue of material fact and that the defendant is entitled to judgment

as a matter of law. (Id. at p. 850.)

       On appeal following the grant of summary judgment, we review the record de

novo, considering all of the evidence except that to which objections were made and

sustained. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “We liberally

construe the evidence in support of the party opposing summary judgment and resolve

doubts concerning the evidence in favor of that party.” (Ibid.)

       “Our review of the summary judgment motion requires that we apply the same

three-step process required of the trial court. [Citation.] ‘First, we identify the issues

framed by the pleadings since it is these allegations to which the motion must respond by

establishing a complete defense or otherwise showing there is no factual basis for relief

on any theory reasonably contemplated by the opponent’s pleading. [Citations.] [¶]

Secondly, we determine whether the moving party’s showing has established facts which

negate the opponent’s claim and justify a judgment in movant’s favor. [Citations.] . . .

[¶] . . . [T]he third and final step is to determine whether the opposition demonstrates the

existence of a triable, material factual issue. [Citation.]’ [Citation.]” (Todd v. Dow

(1993) 19 Cal.App.4th 253, 258.)

       “‘The purpose of a summary judgment proceeding is to permit a party to show that

material factual claims arising from the pleadings need not be tried because they are not


                                              7
in dispute.’ [Citation.] Materiality depends on the issues in the case, and what matters

are at issue is determined by the pleadings, the rules of pleadings, and the substantive

law. [Citation.] ‘The complaint measures the materiality of the facts tendered in a

defendant’s challenge to the plaintiff’s cause of action.’ [Citation.]” (Teselle v.

McLoughlin (2009) 173 Cal.App.4th 156, 172, italics added.)

         Looking to plaintiffs’ complaint, the following is alleged:

         “9. Defendant CITY OF DESERT HOT SPRINGS . . . owned, operated,

designed, planned, engineered, maintained, inspected, repaired, and controlled the streets,

roadways and sidewalks of the City of Desert Hot Springs, including but not limited to

the area of and/or immediately adjacent to Palm Drive at or near the intersection [of]

Camino Campesino, Desert Hot Springs, California . . . . [¶] . . . [¶]

         “15. On November 16, 2007, at approximately 7:00 a.m., while walking along the

dirt shoulder of northbound Palm Drive near the intersection with Camino Campesino,

Decedent was struck by a hit-and-run driver and was left on the side of the roadway to

die. . . .

         “16. Defendants . . . failed to require installation of sidewalks . . . and failed to

control the streets, roadways and sidewalks . . . and . . . failed to provide proper

pedestrian walkways . . . and failed to provide any signs and/or warnings of the

narrowing road creating a trap . . . along Palm Drive at or near the intersection with

Camino Campesino . . . thereby, creating dangerous conditions . . . exposing . . .

pedestrians to vehicle traffic. These dangerous conditions . . . proximately caused the


                                                 8
death of Decedent when she was struck by a vehicle operated by the hit-and-run motorist

. . . . [¶] . . . [¶]

        “18. . . . Defendants, and each of them, knew or should have known the subject

roadway leading to the Dessert [sic] Middle School was unsafe for pedestrian traffic and

despite such knowledge failed to take proper precautions for the safety of the pedestrians

and students including Plaintiff’s Decedent.

        “[19]. Additionally, signs, warnings, safety crossing guards or other devices were

necessary to warn of these dangerous conditions which endangered the safe movement of

pedestrians, students . . . which would not be reasonably apparent to, and would not have

been anticipated by, a person exercising due care.”

        As framed by the above pleadings, plaintiffs are, in essence, contending that Palm

Drive was dangerous because the City failed to provide sidewalks or safe pedestrian

walkways, failed to provide signs and/or warnings of a narrowing roadway, and that these

conditions created a trap to pedestrians causing the decedent’s death.

        The City is entitled to summary judgment if by way of its undisputed facts and

supporting evidence it establishes a complete defense to the above allegations or shows

that plaintiffs cannot prove one or more elements of their cause of action. (Eriksson v.

Nunnink (2011) 191 Cal.App.4th 826, 848 [Fourth Dist., Div. Two].)

        Stated otherwise, the City is entitled to summary judgment if it establishes that the

roadway and adjacent shoulder were not in a dangerous condition or a cause of the




                                               9
plaintiffs’ injury or, alternatively, that plaintiffs could not show that the roadway was in a

dangerous condition or a cause of the injury.

       “The defendant must demonstrate that under no hypothesis is there a material

factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the

motion must be denied. Only if the defendant meets this burden does ‘the burden shift[]

to plaintiff to show an issue of fact . . . .’ [Citation.]” (Anderson v. Metaclad Insulation

Corp. (1999) 72 Cal.App.4th 284, 289-290.) Here, the City did not meet its initial

burden.

       1. The City’s Undisputed Facts and Supporting Evidence Did Not Establish a

Complete Defense to the Allegations of a Dangerous Condition of Public Property

       First, the City did not, by way of its undisputed facts and supporting evidence,

affirmatively establish that the roadway and adjacent shoulder were not in a dangerous

condition. The undisputed facts and evidence upon which the motion was granted were:

       “1. In the morning of November 16, 2007, before 8:25 a.m., a fatal hit and run

accident occurred on Palm Drive in Desert Hot Springs. The collision occurred between

Camino Campesino and Avenue Aventura streets.”

       “2. The area of Palm Drive where the accident occurred is straight, level and

paved, with an unobstructed view in all directions.”

       “3. The area of Palm Drive where the accident occurred is a four-lane roadway,

with two lanes of travel in each direction. There was a solid white line marking the edge

of the roadway on the east side of Palm Drive, also known as a ‘fog line.’”


                                             10
       “4. Conditions the morning of the accident were clear, sunny and dry.”

       “5. The accident occurred on the east side of Palm Drive, when a northbound

driver hit a pedestrian as she was walking in the dirt area adjacent to the road.”

       “6. From May 2002 until November 16, 2007, there were no auto-pedestrian

accidents in this area of Palm Drive.”

       “7. From May 2002 until November 16, 2007, there were nine auto accidents (not

involving pedestrians) in this area of Palm Drive, with varying causes.”

       As support for these undisputed facts, the City submitted 11 photographs of the

roadway which were attached to the declaration of Radames Gil, various traffic volume

counts taken over a space of years in conjunction with traffic collision reports, and a

spread sheet depicting the number of accidents in the area.

       Based on these undisputed facts and the evidence, the trial court granted summary

judgment. As set forth in its statement of decision: “The court finds that [the City’s]

Undisputed Facts numbers 1-4 are undisputed. . . . The photographs of the scene . . .

demonstrate that there are no vision obstructions which would prevent a motorist from

seeing a pedestrian, the roadway was flat, straight and level, the roadway markings were

in good condition, the fog line was clearly marked, and the roadway surface was in good

condition and free of any defects. . . . Based upon the court’s review of the photographs,

and . . . [undisputed facts] nos. 1 through 4, the court finds that [the City] has presented

sufficient evidence that ‘no reasonable person could find that Palm Drive in [the] area of

the incident constituted a dangerous condition’ so as to shift the burden to plaintiffs to


                                              11
demonstrate that one or more triable issues of fact exist as to whether a dangerous

condition existed.” We believe this analysis oversimplifies the issue.

       Under our facts the issue as to whether there exists a dangerous condition of the

roadway and adjacent dirt shoulder is, to a large extent, the subject of expert testimony.

Certainly, a court under section 830.2 can as a matter of law determine that a condition of

property does not pose a substantial risk of injury as opposed to a trivial or insignificant

risk. (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732.)6 This is not our case,

however. We do not believe, in this instance without the aid of expert testimony, that a

layperson can conclude, based on 11 photographs of a roadway, that a dangerous

condition of public property is not present as a matter of law. Carson v. Facilities

Development Co. (1984) 36 Cal.3d 830 (Carson) and Miller v. Los Angeles County Flood

Control Dist. (1973) 8 Cal.3d 689 (Miller) are instructive.

       In Carson, the plaintiffs sued the City of San Diego on a theory of a dangerous

condition of public property. The plaintiffs’ decedent, who was driving southbound on

Colusa Street, brought her vehicle to a stop behind the limit line at the intersection of

Colusa Street and Friars Road. It was her intention to turn left and proceed eastbound on

       6  Section 830.2 provides: “A condition is not a dangerous condition within the
meaning of this chapter if the trial or appellate court, viewing the evidence most
favorably to the plaintiff, determines as a matter of law that the risk created by the
condition was of such a minor, trivial or insignificant nature in view of the surrounding
circumstances that no reasonable person would conclude that the condition created a
substantial risk of injury when such property or adjacent property was used with due care
in a manner in which it was reasonably foreseeable that it would be used.” As provided
in the Law Revision Commission comment to section 830.2, the rule set forth in this code
section stems primarily from “cases involving dangerous conditions of sidewalks.”

                                             12
Friars Road. After bringing her vehicle to this initial stop, she proceeded closer to Friars

Road and stopped again. She then began her left turn; at this point, a westbound motorist

on Friars Road was approximately 50 feet from the plaintiffs’ decedent’s vehicle. The

cars collided, causing the death of plaintiffs’ decedent. At the time of the accident there

was an address sign and trees on the northeast corner of Friars Road and Colusa Street.

       As framed by the court: “One of the major issues addressed by the testimony was

whether and to what degree the address sign and the trees located along the north side of

Friars Road obstructed the visibility of drivers stopped on Colusa Street at the north side

of the intersection.” (Carson, supra, 36 Cal.3d at p. 838.) A nearby resident “testified

that the driver of a southbound car on Colusa Street did not have a clear view of

oncoming westbound traffic until the front of [the] car had moved past the stop sign limit

line and was protruding slightly into Friars Road past its north curb. This evidence

suggested that the sign and/or shrubbery obstructed decedent’s view at both her stopping

points.” (Ibid.) The plaintiffs did not call an expert to testify on the issue of dangerous

condition of public property.

       After presentation of the plaintiffs’ case, the trial court granted a nonsuit. In

reversing the grant of nonsuit, the Supreme Court discussed the city’s argument that the

plaintiffs needed expert testimony to establish the existence of a dangerous condition.

“‘[T]he decisive consideration in determining the admissibility of expert opinion

evidence is whether the subject of inquiry is one of such common knowledge that men of

ordinary education could reach a conclusion as intelligently as the [expert] witness or


                                              13
whether, on the other hand, the matter is sufficiently beyond common experience that the

opinion of an expert would assist the trier of fact.’ [Citations.] Expert opinion evidence

is required in some circumstances. ‘If the matter in issue is one within the knowledge of

experts only and not within the common knowledge of laymen, it is necessary for the

plaintiff to introduce expert opinion evidence in order to establish a prima facie case.’

[Citations.]” (Carson, supra, 36 Cal.3d at p. 844; see McCoy v. Gustafson (2009) 180

Cal.App.4th 56, 99.) After discussing various cases, some in which expert testimony was

necessary and some in which it was not, the court in Carson concluded: “‘Evaluated by

these standards, proof of an obstruction at the Colusa Street-Friars Road intersection did

not require expert testimony. No special expertise was required to show that a driver

looking east down Friars Road would have difficulty seeing oncoming westbound traffic.

Accordingly, it was error to grant a nonsuit for the City on this ground.” (Carson, supra,

at p. 845, italics added.)

       In accord with the above discussion, the court in Miller, supra, 8 Cal.3d 689 came

to an opposite conclusion as to the necessity for expert opinion on the facts before it.

There, the plaintiffs purchased a home on Country Club Drive. Country Club Drive

served “both as a passageway for vehicular traffic and, in times of heavy rain, as a flood

control channel. . . . [T]he street was designed with 18-inch curbs in order to contain the

rainwater that ran through the canyon to the valley below. [Plaintiffs’] home was situated

at a 90-degree curve in this street, so that it lay in a direct line with the natural water

runoff. At the head of Country Club Drive [was] . . . a flood control structure known as


                                               14
the Upper Debris Basin. The dam-like structure [was] built . . . in 1929 . . . [and] was

designed to collect mud and debris which, in times of flood, might endanger lives and

property in the city below.” (Id. at pp. 692-693.)

       One year before the plaintiffs purchased their home and two years after it was

constructed, a house next door had been destroyed by flood waters. Approximately eight

months before the incident in question a fire substantially denuded the hills above the

debris basin. On the day of the incident, “a rainstorm quickly filled the Upper Debris

Basin. A wall of water, mud and debris overflowed, traveling down the canyon to the

curve in the street where the [plaintiffs’] home was located.” (Miller, supra, 8 Cal.3d at

p. 693.) The home was destroyed. One person died in the home and two were injured.

Defendant Noble Manors was sued for negligence in the design and construction of the

home. At trial, the plaintiffs did not call an expert relative to the negligence of the

defendant. Following presentation of the plaintiffs’ case, the trial court granted a nonsuit

on the basis that “the evidence did not establish a prima facie showing of negligence.”

(Id. at p. 694.)

       On appeal, the plaintiffs argued that the trial court should have allowed the jury to

determine from their own common experience whether Noble Manors acted reasonably.

(Miller, supra, 8 Cal.3d at p. 702.) In finding that expert testimony was necessary, the

court indicated that “[t]he average layman has neither training nor experience in the

construction industry and ordinarily cannot determine whether a particular building has




                                              15
been built with the requisite skill and in accordance with the standards prescribed by law

or prevailing in the industry.” (Id. at. pp. 702-703, fn. omitted, italics added.)

       Applying these concepts to the present case, it is evident that evidence from an

expert was necessary for purposes of the City prima facially establishing that there

existed no triable issue of material fact as to whether the roadway and adjacent shoulder

constituted a dangerous condition of public property. In most cases, the proper and safe

design of public roadways requires special expertise and is done in accordance with

criteria prevailing in the traffic engineering field.7 It is not simply a matter of laying

pavement on top of dirt and painting lines thereon. A prime example of this is the 1999

“Street Improvement Plan Palm Drive,” which was not admitted into evidence on the

present motion.

       Here, there is no evidence that the design, construction, and maintenance of the

roadway and adjacent dirt shoulder conformed to accepted highway design criteria or

guidelines, or that the roadway was safe for motorists and pedestrians. For example,

plaintiffs contend that in the area of the accident the roadway narrowed. Here, there is no

evidence of the lane widths and the fact that they conformed with the prevailing and

       7  See California Highway Design Manual (July 1, 2008) (“The manual establishes
uniform policies and procedures to carry out the highway design functions . . . .”) and
American Association of State Highway and Transportation Officials, A Policy on
Geometric Design of Highways and Streets. The court takes judicial notice of the
existence of these publications relative to their availability and use in the design and
construction of roadways, signing of said roadways, and the design and construction of
pedestrian and bicycle pathways. (See City of Maywood v. Los Angeles Unified School
Dist. (2012) 208 Cal.App.4th 362, 417, fn 25 [“appropriate to take judicial notice of data
‘not cited by the parties’ . . . .”].)

                                              16
accepted standards relative to the design of roadways. Further, and as exemplified by the

1999 design of the roadway, which was not admitted into evidence, there was no

evidence that the slope of the northbound lanes was in accordance with industry

standards. Lastly, there is no expert declaration relative to the fact that the roadway and

adjacent shoulder were safe as it related to pedestrian traffic. Under the present facts, the

submission of 11 innocuous photographs of a roadway simply does not meet the City’s

burden of affirmatively demonstrating that no triable issue of material fact exists. Just as

a judge could look at photographs and surmise that a dangerous condition is not present,

a similarly situated judge could look at photographs and surmise that the drop-off

between the paved portion of the roadway and the dirt shoulder is unsafe, thereby

contributing to a loss of control by the hit-and-run motorist. As in Miller, design of

roadways is normally beyond the training and expertise of the average layperson. Under

our facts, evidence that the design and construction of the roadway and adjacent shoulder

was within prevailing standards was necessary.

       Here, there must be some expert evidence to support the conclusion that no triable

issue of material fact exists as to the dangerousness of the public property. (See Kahn v.

East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003 [“defendant must present

evidence that would preclude a reasonable trier of fact from finding that it was more

likely than not that the material fact was true”], italics added.) The City failed to produce

such evidence.




                                             17
       In arguing that plaintiffs, by way of their opposition, did not demonstrate a triable

issue of material fact, the City cites to the trial court’s statement of decision wherein it

explained: “Plaintiffs proffered no admissible evidence of a dangerous condition of

public property. No expert opinions were submitted attacking the design of the roadway,

signage, excessive speed limit, poor visibility, condition of the roadway surface, lack of

sight distance, lack of maintenance, elevation variances, prior accidents in the area or any

unusual condition. . . .” (Italics added, underlining omitted.) The observation that

plaintiffs submitted no admissible evidence by way of expert opinion misses the point.

On a motion for summary judgment, the initial burden of producing evidence rests with

the moving defendant not the plaintiff. Thus, it was incumbent on the City to initially

submit expert evidence so as to shift the burden to plaintiffs.

       Instructive is Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th

1509. There, the defendant law firm moved for summary judgment on the basis that it

was not negligent. The defendant argued that the plaintiff’s failure to produce expert

evidence in opposition to the motion allowed for the trial court’s entry of summary

judgment. “[T]he burden-shifting provisions of [Code of Civil Procedure] section 437c,

subdivision (o)(2) do not operate until the moving party first produces affirmative

evidence negating the duty’s existence, or evidence that [defendants] did not breach the

duty of care. [Citation.] [Defendants] produced no expert testimony negating the duty of

care or breach of duty elements of [plaintiff’s] cause of action, and the motion for

summary judgment should have been denied even though [plaintiff] did not produce


                                              18
expert testimony.” (Id. at pp. 1534-1535.) “[I]f the showing by the defendant does not

support judgment in his favor, the burden does not shift to the plaintiff and the motion

must be denied without regard to plaintiff’s showing.” (Id. at p. 1534.)

       Here, the City failed to affirmatively produce sufficient evidence to shift the

burden of production to plaintiffs; as such, it did not demonstrate its entitlement to

summary judgment.

       2. The City Did Not Establish That Plaintiffs Cannot Prove an Element of Their

Cause of Action

       “As an alternative to the difficult task of negating an element, the defendant may

present evidence to ‘show[] that one or more elements of the cause of action . . . cannot

be established’ by the plaintiff. [Citations.] A defendant ‘has shown that the plaintiff

cannot establish at least one element of the cause of action by showing that the plaintiff

does not possess, and cannot reasonably obtain, needed evidence: The defendant must

show that the plaintiff does not possess needed evidence, because otherwise the plaintiff

might be able to establish the elements of the cause of action; the defendant must also

show that the plaintiff cannot reasonably obtain needed evidence, because the plaintiff

must be allowed a reasonable opportunity to oppose the motion . . . .’ [Citations.] A

defendant can satisfy its initial burden to show an absence of evidence through

‘admissions by the plaintiff following extensive discovery to the effect that he has

discovered nothing’ [citation], or through discovery responses that are factually devoid.

[Citations.] [¶] Only after the defendant’s initial burden has been met does the burden


                                             19
shift to the plaintiff to demonstrate, by reference to specific facts, not just allegations in

the pleadings, there is a triable issue of material fact as to the cause of action.” (Chavez

v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301-1302, some italics in original, some

italics added.)

       The City suggests at pages 25 and 26 of its brief that plaintiffs have no evidence to

support the contention that any defect in the roadway was a cause of the injury. As

stated: “‘An essential element of a cause of action for damages based on a dangerous

condition of public property is causation.’ [Citations.] Proof of causation is not the

City’s burden: ‘plaintiff must show that the dangerous condition in question was a

substantial factor in causing his or her harm.’ [Citation.]” Within the context of a

summary judgment motion, the City’s argument is misplaced.

       Initially, the case relied upon by the City for the proposition that it is plaintiffs’

burden to show that the dangerous condition was a substantial factor in causing the harm

is a case in which the trial court sustained a demurrer without leave to amend. The fact

pattern before that court was a situation in which the plaintiff’s decedent committed

suicide by jumping off the Golden Gate Bridge. The plaintiff contended that in the

absence of a “suicide barrier” the bridge was a dangerous condition. After discussing

well-settled law that the negligence or lack of due care exhibited by the plaintiff-user

does not defeat a cause of action for dangerous condition, the court stated, as to the action

before it: “We conclude reasonable minds will reach but one conclusion as to whether

the lack of a suicide barrier is a dangerous condition. By definition, persons who use the


                                              20
bridge to commit suicide are not using the bridge in a manner used by the general public

exercising ordinary care.” (Milligan v. Golden Gate Bridge Highway & Transportation

Dist. (2004) 120 Cal.App.4th 1, 7.) As to causation, the court concluded: “Here,

appellant does not allege that her daughter accidentally fell from the bridge while

engaged in horseplay, while leaning over the railing to gain a better view, or while posing

for a photograph. Appellant admits that [the decedent] intentionally climbed over the

existing three-and-one-half-foot safety railing and jumped. Whatever defects may or may

not be present in the railing’s current design, they were not, as a matter of law, the cause

of [the decedent’s] tragic death.” (Id. at p. 9.) On its facts, the case has no applicability

to the present matter.

       Further, on a motion for summary judgment, it is the defendant’s burden to

demonstrate that the plaintiff cannot prove causation. “[A] defendant cannot simply

‘argue’ that a plaintiff lacks sufficient evidence to establish causation; the defendant must

make an affirmative ‘showing’ that the plaintiff cannot do so. While we acknowledge[]

that circumstantial evidence supporting a summary judgment motion ‘can consist of

“factually devoid” discovery responses from which an absence of evidence can be

inferred,’ we also note[] ‘that the burden should not shift without stringent review of the

direct, circumstantial and inferential evidence.’ [Citation.]” (Andrews v. Foster Wheeler

LLC (2006) 138 Cal.App.4th 96, 103.)

       None of the City’s 11 undisputed statements of fact set forth the notion plaintiffs

cannot prove the element of causation. The City submitted no discovery responses to the


                                              21
effect that plaintiffs do not possess facts relative to this element and none of the

supporting declarations or exhibits go to the issue.

       As such, we find that the City failed in its burden. The burden never shifted to

plaintiffs. The motion should have been denied.

       3. The City’s Cases

       In its opposition to the motion and on appeal, the City relies primarily on four

cases for the proposition that in automobile versus pedestrian cases “as a matter of law

that there [is] no substantial risk of [an] accident so long as the driver and pedestrian

exercise[] due care.” As such, “the claim of a dangerous condition can be resolved as a

matter of law ‘if reasonable minds can come to but one conclusion.’”

       The first of the four cases is Brenner v. City of El Cajon (2003) 113 Cal.App.4th

434. There, the plaintiff was struck by a car as she was walking across Chase Avenue

near its intersection with Estes Street. (Id. at p. 436.) In the plaintiff’s second amended

complaint, she alleged that the intersection was not safe for pedestrians because the city

“‘failed to install traffic [regulatory] devices, traffic safety devices, traffic control

devices, signs or traffic signs, or take any steps to manage, control, or reduce the

automobile traffic flow or speed on Chase Avenue and/or . . . failed to take steps to

prevent increased risk of harm and injury to the pedestrians . . . .’” (Id. at pp. 436, 438.)

       In its demurrer, the defendant argued that it was immune from liability under

sections 830.4 and 830.8 for its failure to install traffic (regulatory) devices, traffic safety

devices, traffic control devices, signs or traffic signs. In agreeing with this argument, the


                                               22
appellate court, in affirming the trial court’s granting of the demurrer without leave to

amend, stated: “[T]he Legislature has expressly provided that ‘[a] condition is not a

dangerous condition within the meaning of this chapter merely because of the failure to

provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed

restriction signs, as described by the Vehicle Code, or distinctive roadway markings as

described in Section 21460 of the Vehicle Code.’ (§ 830.4.) Thus, the statutory scheme

precludes a plaintiff from imposing liability on a public entity for creating a dangerous

condition merely because it did not install the described traffic control devices.

[Citations.] [¶] . . . Accordingly, if the facts pleaded by the plaintiff as a matter of law

cannot support the finding of the existence of a dangerous condition within the meaning

of the statutory scheme, a court may properly sustain a demurrer to the complaint.”

(Brenner v. City of El Cajon, supra, 113 Cal.App.4th at pp. 439-440.) The case has little

to no import on the present matter. Certainly, the case did involve an automobile versus

pedestrian accident and the court did hold that as a matter of law the plaintiff had not set

forth a viable cause of action. The reason for the decision however was that based on the

allegations of the plaintiff’s complaint, the governmental entity was immune from

liability under section 830.4.8 This is not the situation that is before us. The allegations

in the present complaint do not plead directly into a statutory immunity.

       8  “A condition is not a dangerous condition within the meaning of this chapter
merely because of the failure to provide regulatory traffic control signals, stop signs,
yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or
distinctive roadway markings as described in Section 21460 of the Vehicle Code.”
(§ 830.4.)

                                              23
         In Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340 (Cerna), an unlicensed

motorist struck six pedestrians as they walked in a marked crosswalk at an uncontrolled

intersection. The roadway consisted of four lanes, two lanes in each direction, with a

center divider. “Pedestrian crossing” was marked on the roadway. There was no

evidence that the car slowed or swerved. The trial court granted the city’s summary

judgment motion.

         After acknowledging that a public entity may be liable for a dangerous condition

of public property where the immediate cause of the plaintiff’s injury is a third party’s

negligent or illegal act, the court went on to analyze whether there were any physical

characteristics of the property at issue that exposed the plaintiff to an increased risk of

injury from the third party’s negligent conduct. (Cerna, supra, 161 Cal.App.4th at p.

1348.)

         As described by the court: “Plaintiffs identified seven features that allegedly made

the City intersection dangerous: (1) the crosswalk was painted white, not yellow; (2)

there was no sign painted in the approaching roadway with the words ‘SLOW—

SCHOOL XING’; (3) there was no traffic signal; (4) there were no crossing guards; (5)

signs warning of the presence of student pedestrians were either missing or in an

incorrect position; (6) the crosswalk was not painted with diagonal or longitudinal lines;

and (7) there were no blinking lights in the pavement along the parallel painted lines of

the crosswalk.” (Cerna, supra, 161 Cal.App.4th at p. 1348.)




                                              24
       In dispensing with all of the plaintiffs’ contentions, which were dependent on the

crosswalk being contiguous to a school (Veh. Code, § 21368), the court stated:

“[P]laintiffs’ reliance on Vehicle Code section 21368—whether to create a mandatory

duty or to demonstrate a dangerous condition—is misplaced because the statute is

inapplicable. The intersection was not contiguous to school grounds and thus Vehicle

Code [section] 21368 did not require demarcation in yellow paint and additional signage

warning of a school crossing. The location of the crosswalk relative to the School

grounds is not in dispute, and thus the applicability of Vehicle Code section 21368 is a

question of law.” (Cerna, supra, 161 Cal.App.4th at p. 1350.)

       Continuing, the court stated: “Plaintiffs’ reliance on other features of the

intersection to prove that it was in a dangerous condition is similarly misplaced. The lack

of a traffic signal at the intersection does not constitute proof of a dangerous condition.

‘A condition is not . . . dangerous . . . merely because of the failure to provide regulatory

traffic control signals . . . .’ (Gov. Code, § 830.4; see Brenner v. City of El Cajon, supra,

113 Cal.App.4th at p. 439.) Nor does the lack of crossing guards prove a dangerous

condition. The presence or absence of crossing guards is not a physical characteristic of

the intersection and thus not actionable as a dangerous condition. A lack of human

supervision and protection is not a deficiency in the physical characteristics of public

property.” (Cerna, supra, 161 Cal.App.4th at pp. 1351-1352.)

       As with Brenner, the court in Cerna determined that as a matter of law, the

plaintiffs’ factual allegations were deficient. The court found that the crosswalk was not


                                             25
contiguous to a school, thus the added protections provided for in the Vehicle Code were

legally inapplicable; the court further found that the plaintiffs’ additional allegations

moved directly into the area subsumed by Government Code section 830.4 (entity is

immune for its failure to provide regulatory traffic control signals). The only similarity

Cerna has with the present matter is that it involves an automobile versus pedestrian

accident; its holding is otherwise inapplicable.

       Salas v. Department of Transportation, supra, 198 Cal.App.4th 1058 involved a

nighttime accident in which a pedestrian, while walking across State Route 12, was

struck and killed by a vehicle. At the time of the accident, the plaintiff’s decedent had

deviated from the crosswalk to examine a bag in the highway. In support of its motion

for summary judgment, the defendant submitted the declaration of Caltrans expert Ron

Nelson. Nelson declared that the roadway was straight and that there were no sight

obstructions for either the motorist or the pedestrian. He further described the warning

signs adjacent to the roadway which notified motorists of the upcoming crosswalk. (Id.

at pp. 1062-1063.) He declared that the signage met current California design standards

and “that the accident location was not a dangerous condition of public property.” (Id. at

pp. 1064, 1066.)

       As for the plaintiff’s evidence, the trial court sustained the defendant’s objections

to all of the police reports of prior accidents in that the prior accidents were not

substantially similar to the one at bar. The court further sustained objections to the

entirety of the plaintiff’s expert’s declaration “except . . . to the innocuous statement that


                                              26
crosswalks warn drivers of potential pedestrians.” (Salas v. Department of

Transportation, supra, 198 Cal.App.4th at pp. 1072-1073, fn. omitted.)

       The case is clearly inapposite. There, summary judgment was entered based on

expert testimony that the roadway complied with accepted design criteria and was not in

a dangerous condition at the time of the accident. That is not the case here. We have a

summary judgment granted on the basis of a judge viewing 11 photographs and coming

to the conclusion, without the aid of expert evidence, that the roadway and adjacent

shoulder were not in a dangerous condition.

       In Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, the plaintiffs’ decedent

was struck by a vehicle while walking in an unmarked crosswalk on a four-lane roadway

during the daytime. Previously, there had been a marked crosswalk in the area. A car in

the No. 1 lane stopped to allow the decedent to cross in front. A second car traveling in

the No. 1 lane changed to the No. 2 lane and struck the plaintiffs’ decedent as she

emerged from in front of the stopped vehicle. The trial court granted the defendant’s

motion for summary judgment.

       On appeal, the plaintiffs argued that the condition was dangerous because of the

unmarked crosswalk. (Sun v. City of Oakland, supra, 166 Cal.App.4th at p. 1184.) In

response, the city, in reliance on the Vehicle Code, submitted: “‘[T]he fact that the

crosswalk was not marked . . . is irrelevant, and certainly does not create a dangerous

condition. Under California law, a crosswalk is either marked or unmarked, and the




                                            27
obligations of drivers and pedestrians to exercise caution and to yield the right of way are

largely the same regardless of the markings or lack thereof.’” (Id. at pp. 1184-1185.)

       The appellate court agreed. As stated: “There must be a defect in the physical

condition of the property and that defect must have some causal relationship to the third

party conduct that injures the plaintiff. [Citation.] ‘[P]ublic liability lies under

[Government Code] section 835 only when a feature of the public property has

“increased or intensified” the danger to users from third party conduct.’ [Citation.]”

(Sun v. City of Oakland, supra, 166 Cal.App.4th at p. 1187.) As such, the appellate court

affirmed the trial court’s granting of summary judgment.

       Much of what was said in Sun could be said here. There is a total lack of evidence

in our record as to whether the public property increased or intensified the danger to

pedestrians from third party drivers. The burden, however, on summary judgment rested

with the City to demonstrate that no triable issue of material fact exists as it relates to this

issue. Without the aid of expert testimony, 11 photographs of the roadway simply do not

meet the City’s initial burden.

       Further, at page 23 of its respondent’s brief, the City submits that “the Vehicle

Code long has contemplated that pedestrians will walk along roadways without a

sidewalk. [Plaintiffs] submitted no law of any kind – administrative, judicial or

otherwise – to suggest the installation of a sidewalk is legally mandated, and that its

absence alone renders a public entity liable for a dangerous condition under the

Government Code.” The argument misses the point; simply because no law mandates a


                                              28
pedestrian walkway or some other installation segregating vehicle and pedestrian traffic,

does not mean that the area of roadway is not in a dangerous condition, within the

meaning of the Government Code.9

                                   III. DISPOSITION

      The judgment is reversed. Each party shall bear their own costs on appeal.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                              KING
                                                                                        J.


We concur:

McKINSTER
                Acting P. J.

CODRINGTON
                          J.




      9  See, as just a few examples, Baldwin v. State of California (1972) 6 Cal.3d 424,
(absence of left turn lane at a heavily traversed intersection), Elias v. San Bernardino
County Flood Control Dist. (1977) 68 Cal.App.3d 70 [Fourth Dist., Div. Two]
(improperly maintained roadway), Warden v. City of Los Angeles (1975) 13 Cal.3d 297 (a
submerged pipe near the surface of the Santa Monica Bay). None of the dangerous
conditions discussed in these cases were violative of state mandates.

                                           29
