Opinion

Scarborough v. City of Lancaster CA2/2

Court
California Court of Appeal
Filed
Oct 1, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 30.7%

The opinion

Filed 10/1/24 Scarborough v. City of Lancaster CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

AMANDA JOLENE-REBECCA B328379

SCARBOROUGH et al.,

(Los Angeles County

Plaintiffs and Appellants, Super. Ct. No. 21AVCV00041)

v.

CITY OF LANCASTER,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of

Los Angeles County. Stephen T. Morgan, Judge. Affirmed.

Keosian Law LLP and Natalie Hairabedian Suri for

Plaintiffs and Appellants.

Law Office of Christopher Ramsey and Christopher

Ramsey for Defendant and Respondent.

______________________________

Plaintiffs Amanda Jolene-Rebecca Scarborough

(Scarborough) and Jeffrey Woodfin (Woodfin) suffered severe

injuries following a two-car collision with Charles Michael

Spurgeon (Spurgeon) in the City of Lancaster (City). Plaintiffs

filed the instant lawsuit against Spurgeon and the City; as

against the City, plaintiffs alleged a dangerous condition of public

property (Gov. Code, § 835). The City successfully moved for

summary judgment and plaintiffs appeal.

We affirm.

FACTUAL BACKGROUND

I. The location

Challenger Way is a north/south rural roadway, with one

lane of traffic in each direction and with a posted speed limit of

55 miles per hour. As is relevant to the issues in this appeal,

Challenger Way intersects with the northern entrance/exit to

Brierwood Estates Mobile Home Park (Brierwood Estates),

approximately 578 feet south of Avenue H. The subject

intersection is a three-directional T-intersection with northbound

and southbound through traffic on Challenger Way; northbound

and southbound traffic on Challenger Way at the intersection do

not have a stop sign. There is a stop sign for traffic at the

northern entrance/exit to Brierwood Estates.

In the area of the subject intersection, Challenger Way is

flat and straight. It is free of obstructions and has more than

adequate sight distances in both northbound and southbound

directions. There is no corner sight issue at the northern

entrance/exit to Brierwood Estates. Challenger Way has two 12-

foot lanes, meeting the minimum standards of the California

Highway Design Manual.

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II. The accident

On September 1, 2020, Spurgeon was driving southbound

on Challenger Way; Scarborough was driving northbound on

Challenger Way, and Woodfin was a passenger in Scarborough’s

car. As Spurgeon was making a left turn from Challenger Way

towards the northern entrance/exit of Brierwood Estates, his

vehicle collided with Scarborough’s vehicle.

Scarborough testified that she was driving at around 40 to

45 miles per hour prior to the collision. Spurgeon testified that

he was traveling at approximately 10 to 20 miles per hour prior

to the collision, and “probably about maybe less than five miles

an hour” “when[he] started to make [his] left turn.”

PROCEDURAL BACKGROUND

I. The lawsuit

Plaintiffs filed the instant lawsuit on January 15, 2021.

The first amended complaint alleges a dangerous condition of

public property against the City.

II. The City’s motion for summary judgment

On August 23, 2022, the City filed a motion for summary

judgment. It argued that (1) plaintiffs could not establish that a

dangerous condition existed at the location of the accident; and

(2) it was immune from liability pursuant to Government Code

sections 830.4 and 830.8.

The City further pointed out that pursuant to Vehicle Code

section 21400, all public agencies in California are required to

follow the Standards and Guidance of the California Manual of

Uniform Traffic Control Devices (CA-MUTCD). Section 2B.07

governs “Multi-Way Stop Applications.” (Bolding omitted.)

Pursuant to section 2B.07, “[m]ulti-way stop control is used

where the volume of traffic on the intersecting roads is

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approximately equal.” Criteria to be considered for multi-way

stop sign installation includes “[f]ive or more reported crashes in

a 12-month period that are susceptible to correction by a multi-

way stop installation.” (Italics omitted.) Because there was only

one similar collision in the six years prior to September 1, 2020,

the CA-MUTCD did not require additional traffic investigations

and/or controls.

In support, the City offered the expert declaration of

Allen G. Bourgeois (Bourgeois), a traffic engineering expert. He

opined “that the available sight lines afforded to drivers on

Challenger Way attempting to turn into Brierwood Estates were

more than adequate for drivers using the roadway in a

reasonable foreseeable manner.” He also asserted that in his

professional opinion, “the lane widths on Challenger Way met the

minimum standards set forth in the California Highway Design

Manual.” Furthermore, after reviewing the Statewide Integrated

Traffic Records System (SWITRS), he averred that “Challenger

Way in the area of the subject collision as configured on the date

of the subject collision shows no signs of operational safety

deficiencies with respect to southbound left-turners and

northbound through vehicles.”

Finally, Bourgeois “investigated whether an all-way stop

would have been appropriate along Challenger Way at the

subject Brierwood Estates entrance.” Citing section 2B.07 of the

CA-MUTCD, “an all-way stop installation at the Brierwood

Estates entrance and Challenger Way would not be appropriate

and could not be justified.”

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III. Plaintiffs’ opposition

Plaintiffs opposed the City’s motion.1 They argued that the

subject intersection constitutes a dangerous condition as a matter

of law or, at a minimum, a triable issue of fact on this issue

exists. Plaintiffs largely based their argument upon the absence

of an all-way stop at the intersection.

Specifically, plaintiffs directed the trial court to section

2B.06, which governs stop sign applications, of the CA-MUTCD.

According to plaintiffs, pursuant to section 2B.06, an all-way stop

is necessary if “[c]rash records indicate that three or more

crashes that are susceptible to correction by the installation of a

STOP sign have been reported within a 12-month period, or that

five or more such crashes have been reported within a 2-years

period.” (Italics omitted.) Because there were five or more

crashes susceptible to correction by a multi-way stop sign, the

City was not entitled to summary judgment. At a minimum,

there is a dispute as to whether section 2B.06 or 2B.07 governed

this intersection, and that dispute should be given to the jury.

They further argued that the City was not immune from

liability.

In support, plaintiffs offered an expert declaration from

Brad P. Avrit (Avrit), who opined that the “intersection of

Challenger Way and the entrance/exit to [Brierwood Estates] is

an unsafe intersection and requires the installation of a STOP

Sign. Analysis of [SWITRS] for Challenger Way between the

intersection of Avenue ‘H’ and an approximate distance of 1700

feet south of Avenue ‘H’ between 2011 and 2021 indicates a total

1

Spurgeon joined in plaintiffs’ opposition.

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number of 23 known accidents with one fatal incident.”

Furthermore, “[t]he subject location of Challenger Way adjacent

to the entrance/exist of [Brierwood Estates] between 2011 and

2021 has had a total of 12 incidents, including the incident

involved in this litigation.” “Between June 2015 and October

2016, the subject location . . . had a total of five incidents.”

Avrit also opined that the City “knew or should have known

of the unsafe condition this region of Challenger Way presents to

drivers, passengers, bicyclists, and pedestrians.” And, he

believed that the City “could . . . decrease the posted speed limit

from 55 MPH to 40 MPH.”

IV. The City’s reply

Among other things, the City argued that Avrit too broadly

identified the relevant area for collision history. While Avrit’s

declaration “refers to a collision history which includes the entire

one mile stretch of Challenger Way between Avenue I and

Avenue H, rather than the area at or near [the subject

intersection], [it] includes no evaluation of the facts or causes of

any of the collisions he refers to; therefore his declaration

contains no evidence that any of the collisions he refers to are

susceptible to correction by the installation of a STOP Sign.”

Setting that aside, the City argued that section 2B.06 does

not apply. “A reading of Section 2B.06 establishes that this

section applies only to intersections where a full stop of all

vehicles is not required, and provides for the placement of a

STOP Sign only on the minor-street approach to the main

highway, which in this case would be the entrance/exit road from

‘Brierwood Estates’ . . . where a Stop sign was already in place at

the time of the” accident. Multi-way stop signs are governed by

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section 2B.07, as set forth in the City’s motion and supported by

Bourgeois’s declaration.

Finally, because speed was not a causal factor in the

accident, the speed limit in the area of the subject intersection is

irrelevant.

V. Initial trial court hearing

On December 15, 2022, the trial court ordered the parties

to meet and confer and then submit a joint document reflecting “a

satellite view of where the accident occurred demonstrating the

relative distance from the street in feet.” It seems that the trial

court was concerned about the appropriate area to consider when

assessing prior collisions.

The parties complied, submitting a stipulation with

photographs depicting various distances on Challenger Way.

Picture No. 3 is a photograph of 1317.74934 feet south of Avenue

H on Challenger Way.

VI. Second trial court hearing

On December 22, 2022, the trial court advised the parties

that it intended to focus on picture No. 3 of the parties’

stipulation in determining whether there were prior incidents

within that distance. After discussion with counsel, the trial

court instructed the parties to submit supplemental expert

declarations focusing on the specific distance outlined in picture

No. 3.

One month later, the parties simultaneously filed

supplemental expert declarations.

Bourgeois reviewed all traffic collisions identified on the

SWITRS report attached to Avrit’s declaration filed in support of

plaintiffs’ opposition to the City’s motion for summary judgment.

Bourgeois opined that “in the approximately 9 year period from

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2011 up to August 31, 2020 the day before [plaintiffs’] collision,

there were only 4 collisions that occurred at or near the [subject

intersection] that were potentially correctable with the

installation of an ‘All Way Stop’ at the [subject intersection].”

Bourgeois also explained that section 2B.07, not 2B.06, of the CA-

MUTCD applied. But, even if section 2B.06 were used, it did not

require the installation of an all-way stop because in the nine-

year period preceding the accident here, there were only four

collisions at the subject intersection that were potentially

correctable by an all-way stop, and there was never a 12-month

period in which there were more than two potentially correctable

collisions.

Avrit reiterated his opinion that the subject intersection

was unsafe and required the installation of a multi-way stop sign.

His review of SWITRS showed 16 known accidents, including five

accidents in between June 2015 and October 2016.2 He also

stated that the speed limit should be reduced.

VII. Final trial court hearing

After entertaining oral argument, the trial court granted

the City’s motion. It found that the subject intersection did not

constitute a dangerous condition as a matter of law. “Despite

Plaintiffs’ presentation that a stop sign is needed and that the

accidents in the relevant area fulfill the requirements of CA-

MUTCD § 2B.06, Plaintiffs[’] argument fails as they, themselves,

do not dispute that there was a stop sign at the intersection

where the incident and the sign was present at the time of the

2

Unlike Bourgeois, Avrit did not declare which, if any, of

these accidents were potentially correctable with the installation

of an all-way stop.

8

incident.” The stop sign at the entrance/exit of Brierwood Estates

“follows CA-MUTCD 2B.06.”

In addition, the trial court rejected plaintiffs’ argument

regarding speed. After all, “[t]he posted speed limit on

Challenger Way was 55 mph, as provided for by statute.” And,

“[t]here were no speed hazards or sight distance problems.”

Moreover, “[i]t has been held that volume and speed alone do not

constitute a dangerous condition.”

VIII. Appeal

Plaintiffs’ timely appeal ensued.

DISCUSSION

I. Summary judgment and standard of review

A “motion for summary judgment shall be granted if all the

papers submitted show that there is no triable issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A

defendant moving for summary judgment bears the burden of

showing that at least one element of a cause of action “cannot be

established, or that there is a complete defense to the cause of

action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

We review the trial court’s order de novo, liberally

construing the evidence in support of the party opposing

summary judgment and resolving doubts concerning the evidence

in that party’s favor. (Gonzalez v. Mathis (2021) 12 Cal.5th 29,

39.) We affirm an order granting summary judgment if it was

correct on any ground that the parties had an adequate

opportunity to address in the trial court. (Securitas Security

Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115,

120.)

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That said, we review the trial court’s evidentiary rulings for

abuse of discretion. (Mitchell v. United National Ins. Co. (2005)

127 Cal.App.4th 457, 467.)

II. Plaintiffs’ procedural objection

Plaintiffs argue that the trial court erred in considering the

simultaneously filed supplemental expert reports without giving

them the opportunity to respond to this new evidence. We are

not convinced. Plaintiffs conceded below that the parties agreed

to submit supplemental expert declarations simultaneously.

They cannot now complain that the expert declarations should

have been submitted separately so that they could be responsive

to one another. (Mayes v. Bryan (2006) 139 Cal.App.4th 1075,

1091 [the appellant bears the “burden of presenting a sufficient

record to establish that the claimed error was not invited by [it],

or be barred from complaining about it on appeal”].)

Setting that aside, as plaintiffs point out in their appellate

briefs, a “trial court’s consideration of . . . additional evidence is

not an abuse of discretion so long as the party opposing the

motion for summary judgment has notice and an opportunity to

respond to the new material.” (Plenger v. Alza Corp. (1992)

11 Cal.App.4th 349, 362, fn. 8.) Here, plaintiffs did have notice

and an opportunity to respond—they were served with the City’s

supplemental expert declaration on January 23, 2023, over a

week before the hearing on the motion for summary judgment.

And, not only were plaintiffs allowed to submit their own

competing expert declaration, they were also permitted to present

argument at the hearing. In fact, at the hearing, plaintiffs

addressed the parties’ dispute over whether section 2B.06 or

2B.07 applied and argued that section 2B.06 governed—as it had

10

in its opposition to the City’s motion. It follows that plaintiffs’

due process rights were not violated.

We thus turn our attention to the substantive merits of the

City’s motion.

III. Relevant law

Government Code section 835 provides: “Except as

provided by statute, a public entity is liable for injury caused by a

dangerous condition of its property if the plaintiff establishes

that the property was in a dangerous condition at the time of the

injury, that the injury was proximately caused by the dangerous

condition, that the dangerous condition created a reasonably

foreseeable risk of the kind of injury which was incurred, and

that either: [¶] (a) A negligent or wrongful act or omission of an

employee of the public entity within the scope of his employment

created the dangerous condition; or [¶] (b) The public entity had

actual or constructive notice of the dangerous condition under

[Government Code] Section 835.2 a sufficient time prior to the

injury to have taken measures to protect against the dangerous

condition.” (See also Garcia v. American Golf Corp. (2017)

11 Cal.App.5th 532, 539–540.)

Government Code section 830, subdivision (a), defines a

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.” Stated differently,

“[a]ny property can be dangerous if used in a sufficiently

abnormal manner; a public entity is required only to make its

property safe for reasonably foreseeable careful use. [Citation.]”

(Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384; see

11

also Fuller v. State of California (1975) 51 Cal.App.3d 926, 940

[“‘a public entity should not be liable for injuries resulting from

the use of a highway—safe for use at 65—at 90 miles an hour,

even though it may be foreseeable that persons will drive that

fast’”].)

“A condition is not a dangerous condition . . . 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.” (Gov. Code, § 830.2.) “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.” (Gov. Code,

§ 830.4.)

By statute, “the happening of the accident which results in

the injury is not in and of itself evidence that public property was

in a dangerous condition.” (Gov. Code, § 830.5, subd. (a).)

In determining “whether a given condition of public

property is minor or insignificant as a matter of law,” we

“consider both the physical description of the condition, and

‘whether there existed any circumstances surrounding the

accident which might have rendered the defect more dangerous

than its mere abstract [description] would indicate.’ [Citation.]

Where appropriate, the court should consider not only the

12

intrinsic nature and quality of the condition, but also other

factors such as the time and place of the occurrence. [Citation.]

‘Furthermore, the court should see if there is any evidence that

other persons have been injured on this same defect.’ [Citation.]”

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

Although the question of whether a dangerous condition

exists is often one of fact, the issue may be resolved as a question

of law when reasonable minds can only draw one conclusion from

the facts. (Chowdhury v. City of Los Angeles (1995)

38 Cal.App.4th 1187, 1194.) In other words, “‘[i]t is for the court

to determine whether, as a matter of law, a given defect is not

dangerous.’” (Davis v. City of Pasadena (1996) 42 Cal.App.4th

701, 704.) “This is to guarantee that [public entities] do not

become insurers against the injuries arising from trivial defects.”

(Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734.)

IV. Analysis

Applying these legal principles, we conclude that the trial

court properly granted the City’s motion for summary judgment.

The location of the accident did not constitute a dangerous

condition as a matter of law. Challenger Way, at the location of

the accident, is a two-lane, rural undivided highway with a

posted speed limit of 55 miles per hour. In the area of the subject

intersection, Challenger Way is flat and straight. It is free of

obstructions and has more than adequate sight distances in both

northbound and southbound directions. There is no corner sight

issue at the northern entrance/exit to Brierwood Estates.

Challenger Way has two 12-foot lanes, meeting the minimum

standards of the California Highway Design Manual. And,

importantly, even though the intersection does not have an all-

13

way stop, there is a stop sign for traffic at the northern

entrance/exit to Brierwood Estates.

Urging us to conclude otherwise, plaintiffs rely upon

section 2B.06 and argue that an all-way stop was required. We

disagree. Rather, as the trial court found, section 2B.06 does not

require the City to install an all-way stop at the subject

intersection. All that section requires is the installation of a stop

sign on the street with less traffic (the minor street approach),

which in this case would be the entrance/exit of Brierwood

Estates. And it is undisputed that such a stop sign exists.

Alternatively, plaintiffs argue that based upon Bourgeois

and Avrit’s competing declarations, there is a triable issue of fact

as to whether section 2B.06 applies3 (and presumably whether it

requires an all-way stop at the subject intersection).

The “‘rule that a trial court must liberally construe the

evidence submitted in opposition to a summary judgment motion

applies in ruling on both the admissibility of expert testimony

and its sufficiency to create a triable issue of fact. [Citations.]’”

(Michaels v. Greenberg Traurig, LLP (2021) 62 Cal.App.5th 512,

524.) “However, even when [a] witness qualifies as an expert, he

or she does not possess a carte blanche to express any opinion

within the area of expertise. [Citation.] For example, an expert’s

opinion based on assumptions of fact without evidentiary support

3

For the sake of completeness, we address this argument,

even though this question is actually an issue of law for the court

to decide de novo. (See, e.g., Vidrio v. Hernandez (2009)

172 Cal.App.4th 1443, 1452 [proper interpretation of statute or

rule of court is a question of law]; Missionary Guadalupanas of

Holy Spirit Inc. v. Rouillard (2019) 38 Cal.App.5th 421, 436

[interpretation of a regulation is a question of law].)

14

[citation], or on speculative or conjectural factors [citation], has

no evidentiary value [citation] and may be excluded from

evidence. [Citations.] Similarly, when an expert’s opinion is

purely conclusory because unaccompanied by a reasoned

explanation connecting the factual predicates to the ultimate

conclusion, that opinion has no evidentiary value.” (Jennings v.

Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th

1108, 1117.)

Here, both of Avrit’s declarations cite to and rely upon

section 2B.06. But he fails to offer any explanation as to why

section 2B.06, and not 2B.07, applies. Under these

circumstances, there is no triable issue of fact for the jury.

(Sanchez v. Kern Emergency Medical Transportation Corp. (2017)

8 Cal.App.5th 146, 155.)

Certainly, an inquiry into the question of dangerousness

involves the consideration of such matters as whether the

condition has been the cause of other accidents. (Lane v. City of

Sacramento (2010) 183 Cal.App.4th 1337, 1346.) But, even

liberally construing Avrit’s declarations regarding the number of

accidents, plaintiffs offer no evidence that the absence of a multi-

way stop at the subject intersection caused any of those accidents.

To the extent plaintiffs contend that subject intersection

constitutes a dangerous condition because of the posted speed

limit, they still cannot defeat the City’s motion for summary

judgment.

“An essential element of a cause of action for damages

based on a dangerous condition of public property is causation”

and “the issue can be decided as a matter of law where the facts

of a case can permit only one reasonable conclusion.” (Milligan v.

Golden Gate Bridge Highway & Transportation Dist. (2004)

15

120 Cal.App.4th 1, 8–9; see also Zelig v. County of Los Angeles

(2002) 27 Cal.4th 1112, 1135 [“liability is imposed only when

there is some defect in the property itself and a causal connection

is established between the defect and the injury”].) To establish

causation, the plaintiff must present evidence that “the

defendant’s conduct was a ‘substantial factor’ in bringing about

his or her harm.” (Bowman v. Wyatt (2010) 186 Cal.App.4th 286,

312.)

Here there is no evidence that speed contributed to the

collision. Both drivers testified that they were driving at speeds

below the posted speed limit. Thus, decreasing the speed limit

from 55 miles per hour to 40 miles per hour would not have

potentially avoided the accident.

All remaining arguments are moot.

DISPOSITION

The judgment is affirmed. The City is entitled to costs on

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

HOFFSTADT

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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