The opinion
Filed 3/2/22 Silva v. City of L.A. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
KILDARE LIMA SILVA, B308601
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC696664)
v.
CITY OF LOS ANGELES et al.,
Defendants and
Respondents.
APPEAL from judgments of the Superior Court of
Los Angeles County. Ruth Ann Kwan, Judge. Affirmed.
Choulos, Choulos & Wyle, George V. Choulos; Law Office of
Gary Simms, Gary L. Simms; Matthew J. Kita; Law Office of
Scott Righthand and Scott D. Righthand for Plaintiff and
Appellant.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Deputy Assistant City Attorney, Scott Marcus, Senior
Assistant City Attorney, Blithe S. Bock, Managing Assistant City
Attorney and Sara Ugaz, Deputy City Attorney for Defendant
and Respondent City of Los Angeles.
Wood, Smith, Henning & Berman, Nicholas M. Gedo,
Victoria L. Ersoff and Zachary C. Hansen for Defendant and
Respondent Shelter Clean Services, Inc.
_________________________
While riding on Ballona Creek Bike Path (Bike Path),
Kildare Lima Silva (Silva) encountered uneven asphalt, lost
control of his bike, and suffered personal injuries that rendered
him a quadriplegic. A negligence lawsuit ensued. The trial court
granted summary judgment for City of Los Angeles (City) based
on the absolute trail immunity in Government Code section
831.4, subdivision (b).1 It also granted summary judgment for
Shelter Clean Services, Inc. (Shelter Clean), a contractor for City
responsible for keeping the Bike Path swept and clear, due to the
absence of a duty to protect third parties from harm caused by
the Bike Path’s uneven surface.
We affirm.
1 All further statutory references are to the Government
Code unless otherwise indicated.
2
FACTS2
Ballona Creek Bike Path
In the 1970’s, the Los Angeles County Flood Control
District (District) entered into multiple agreements with City to
develop “bicycle facilities on District rights of way.” Agreement
28424 referred to “FUTURE RECREATIONAL FACILITIES,”
and Agreement 34220 stated that the United States Army Corps
of Engineers (Army Corps of Engineers) had initiated a cost-
sharing program “for the recreational development of certain
flood control rights of way,” and that it proposed a budget of
$590,000 “for the construction of a bicycle trail on District rights
of way for Ballona Creek, provided matching funds are available
from local agencies.” Agreement 34222 was referred to as a
“RECREATIONAL AGREEMENT,” and it stated that the Army
Corps of Engineers intended to construct “a bicycle trail on
District rights of way for Ballona Creek[.]” It also stated that
District, as owner of the property, would act as the lead agency
for the cost-sharing program, and that once the Bike Path was
completed and accepted, City agreed to be responsible for police
protection and security of the bikeway within City’s boundaries,
and that City further agreed to maintain or arrange for
maintenance of the bikeway and landscaping.
2 Our statement of facts includes evidence of City’s and
Shelter Clean’s understanding of their contractual relationship.
We recognize that a party’s undisclosed understanding of a
contract is irrelevant to contract interpretation. (Founding
Members of the Newport Beach Country Club v. Newport Beach
Country Club, Inc. (2003) 109 Cal.App.4th 944, 956.) This
evidence provides context for the conduct of City and Shelter
Clean.
3
The Bike Path is approximately seven miles long and spans
from Culver City to the Ballona Wetlands near Marina Del Rey.
About two and a half miles of the Bike Path run through City
from Sepulveda Boulevard to Lincoln Boulevard. The Bike Path
has many cracks. It is nonirrigated, and City’s jurisdiction is
limited to the Bike Path’s 12-foot-wide asphalt surface as well as
the railing between it and the creek. Based on its use contract
with Los Angeles County, City’s jurisdiction does not include the
vegetation or trees adjacent to the Bike Path.
The Bike Path is a class I bikeway.3 It leads to the beach.
Shelter Clean’s Contract with City
In response to a request for proposal (RFP) from City,
Shelter Clean submitted a proposal (Proposal) on May 9, 2014, to
provide City with management and performance of landscaping4
and maintenance services for its bike path facilities. City
accepted Shelter Clean’s proposal, and they entered a contract
signed in September 2014 (Contract) that incorporated the RFP
and Proposal, and which included an appendix containing the
“Standard Provisions for City Contracts.” Paragraph 3.6 of the
Contract provided: “CONTRACTOR shall monitor CITY Bike
Path Facilities, as specified in the RFP, and report to CITY Staff
3 “Bike paths or shared use paths, also referred to as ‘Class I
bikeways,’ . . . provide a completely separated right-of-way
designated for the exclusive use of bicycles and pedestrians with
crossflows by motorists minimized.” (Sts. & Hy. Code, § 890.4,
subd. (a).) The Bike Path is a “completely off-street network that
is not open to public vehicular traffic and it is for the exclusive
use of bicycles and pedestrians.”
4 While some bike path facilities have landscaping that City
must maintain, the Bike Path does not.
4
immediately any emergency situations that occur.” The Proposal
had a section entitled “Activities” that contained a subsection
entitled “Bike Path Facility Inspectors” with references to a
“Senior Bike Path Inspector” and an “Assistant Inspector.” Per
that section, the inspectors “will report on an Inspection
Checklist for each sector inspection,” “monitor and report any
problems,” “attempt to remove graffiti as it is seen and correct
other problems during the regular inspections if time allows.”
The “property inspections will include the following: [¶] . . . [¶]
Condition of asphalt; potholes, cracks; etc.” Also, the property
inspections will include bike path sweeping and trash; theft of
drain covers, backflow devices, and other salvageable metal
items; general landscape and irrigation; condition of nonirrigated
and nonserviced vegetation; graffiti on walls, signs, etc.;
suspicious activity; subcontractor activity; homeless
encampments; and illegal dumping.
The Contract specified that for purposes of project
management, Alan Mudge (Mudge) was the principal in charge
who “shall assume ultimate responsibility for, and participate in,
all activities.”
City’s Understanding of the Contract and Expectations of
Shelter Clean
Abbass Vajar (Vajar),5 a Transportation Engineer for City’s
Department of Transportation, considered Shelter Clean
5 Vajar represented City at a deposition as, inter alia, its
“person most qualified to discuss . . . contracts with private
entities for the upkeep, repair[], and maintenance of [the Bike
Path] and the adjacent areas;” the person most qualified
regarding City’s placement of signs to warn bike riders of uneven
pavement on the Bike Path; and the person most qualified to
5
responsible for clearing branches and twigs from the trail. If a
tree fell and impeded that Bike Path, then Shelter Clean was
authorized to remove it immediately. He expected Shelter Clean
to report a hazard such as a sinkhole, a fallen tree or boulder
blocking the Bike Path, or a fallen railing. Vajar did not expect
Shelter Clean to report cracks in the asphalt to City. Nor did he
expect Shelter Clean to patch or report a crack the size of the one
that Silva’s attorney showed him at his deposition.6 Based on his
understanding, the Contract did not require Shelter Clean to cut
tree roots under the asphalt. With respect to the Bike Path,
Shelter Clean’s obligations under the Contract were coextensive
with, and limited to, the area of City’s jurisdiction over the
asphalt and railing.
A City Transportation Engineering Associate 3 named
Edward Giron (Giron) understood that Shelter Clean’s job was to
inspect for obstructions. Shelter Clean did not perform asphalt
repair. City asked Shelter Clean “just to keep the path over the
asphalt clear.”
Shelter Clean’s Understanding of the Contract
Mudge, the principal in charge for Shelter Clean, believed
the company was supposed to inspect the overall condition of the
asphalt for conditions that would make it impassable or unsafe.
discuss quarterly reports provided by Shelter Clean in accordance
with the Contract.
6 During his deposition, Vajar reviewed some photos. They
depicted a branching crack that had a breadth of two-inches at its
widest, and a depth of two-inches at its deepest. The full crack is
not in the photo. It appears that the crack is at least five feet
long.
6
To him, an unsafe condition would be something like a “gaping
sink hole[.]”
Conduct of City and Shelter Clean After They Entered
into the Contract and Prior to Any Dispute
A City employee inspected the entire length of Ballona
Creek Bike Path at least once a month to ensure that Shelter
Clean was, inter alia, sweeping and cleaning. City was aware
that the Bike Path had cracks. It depended on Shelter Clean to
inspect for debris, fallen trees, low branches, broken railings, and
graffiti. Shelter Clean inspected for conditions that would make
the Bike Path impassable. The only thing it ever reported was
fallen trees. Shelter Clean did not notify City of upheavals in the
asphalt.
If its employees observed a fallen tree blocking the Bike
Path, they would cut the tree up and get it out of the way. City
and Shelter Clean did not maintain the trees adjacent to the Bike
Path. However, if branches from those trees were hanging too
low over the Bike Path and creating a hazard, Shelter Clean
would cut them.
At City’s direction, Shelter Clean used cold asphalt to patch
asphalt on City owned bike path facilities but it never performed
that service on the Bike Path.7 Cold asphalt is “a very
temporary. . . Band-Aid patch[.]”
7 In his deposition, Vajar stated that Shelter Clean
performed an asphalt patch on Ballona Creek Bike Path on one
occasion at his direction. He later testified that he could not
recall whether Shelter Clean did any asphalt patches on Ballona
Creek Bike Path. Giron testified that he is not aware of Shelter
Clean doing any asphalt patches there, and that he never made
such a request. He asked Shelter Clean to perform asphalt
patches on “other bike facilities that are owned by” City. The
7
City asked Shelter Clean to obtain estimates to repair
asphalt on the Bike Path.8 In September 2015, Shelter Clean
sent City a proposal from Del Rey Paving.9 City did not approve
the Proposal.
Shelter Clean never placed warning signs on the Bike Path.
A City employee put up a caution sign at one of City’s bike path
facilities.
After Silva’s accident, Vajar did not ask Shelter Clean to
repair the crack because it does not do major repairs. It “only
sweeps and maintains the surface of the roadway of the Bike
Path[.]” It never patched cracks like the one that caused Silva’s
accident because it was not an “expert in doing roadway surfaces
or asphalt work,” and that was not within the “capacity of [its]
work[.]”
The Accident
On March 7, 2017, Silva was riding his bike to work on
Ballona Creek Bike Path at a speed of approximately 15 to 20
miles per hour. He “felt [his] front wheel hit uneven pavement
and [he] was unable to steer to control [his] bicycle’s direction
record contains photos of what appear to be two asphalt patches.
They each involve a flat surface, i.e., a surface with no waves or
bumps, and a patch on areas that measure in inches. Jutting out
from those patches are needle thin cracks.
8 Mudge testified that “a repair of asphalt would be possibly
cutting out complete sections of it to repave.”
9 The scope of the Proposal is not clear from the record. Also,
the record does not disclose what portions of the asphalt Del Rey
Paving proposed to repair.
8
which caused [him] to be propelled headfirst into the metal
railing.”
He suffered permanent quadriplegia.
Cause of the Uneven Surface
Based on a visual inspection of the scene of the accident,
Giron concluded that tree roots grew under the asphalt and
caused cracks and waves.
Giron took photos. A photo of the overall area depicts a
crack that appears to run 20 feet or so longitudinally down the
middle of the Bike Path. The crack appears to have five
perpendicular branches, three extending right and two extending
left. The branches are about four to six feet long. Based on the
photo, the widest crack is one of the three perpendicular cracks
extending to the right. The asphalt is uneven with bumps or
waves where it rises and dips.10
The Operative Pleading
In the first amended complaint, Silva sued City, other
public entities, a paving contractor and Doe defendants for
premises liability and general negligence. He substituted Shelter
Clean as Doe 1.
Summary Judgment for City
Moving Papers
City sought summary judgment based on the argument
that the Bike Path qualifies as a “trail” used for a purpose such
as “riding,” and that section 831.4, subdivision (b) therefore
10 The parties contend that the crack was widest along its
longitudinal line. Whether the crack was widest along a
longitudinal line or a perpendicular line is not material to this
appeal.
9
entitles City to absolute immunity for any injury caused by the
condition of the Bike Path.
Opposing Papers
To defeat summary judgment, Silva argued: City is not
entitled to absolute immunity under section 831.4, subdivision (b)
if it did not comply with the Streets and Highway Code when
developing the Bike Path, and there is a triable issue as to
whether it complied. Regardless, any time a paved trail is on an
easement of way11 leading to unimproved property such as the
beach, a public entity’s liability with respect to injury caused by a
condition of that paved trail is governed exclusively by section
831.4, subdivision (c). Under section 831.4, subdivision (c), a
public entity has immunity on the condition that it reasonably
attempted to warn users of a hazard. Here, there is a triable
issue as to whether City reasonably attempted to provide the
Bike Path users with a warning.
Ruling
The trial court granted summary judgment for City,
reasoning that the Bike Path was a trail covered by section 831.4,
subdivision (b) because it is used for “riding,” and City was
entitled to absolute immunity. The trial court rejected Silva’s
arguments that the Streets and Highway Code created an
exception to immunity and that City accepted an easement of
way in a manner that would trigger the application of section
831.4, subdivision (c).
11 “‘A grant in general terms of an easement of way will
ordinarily be construed as creating a general right of way[.]’”
(Laux v. Freed (1960) 53 Cal.2d 512, 525.)
10
Summary Judgment for Shelter Clean
Moving Papers
Shelter Clean moved for summary judgment or, in the
alternative, summary adjudication. Per Shelter Clean, the
premises liability cause of action lacked merit because it did not
own, control or possess the Bike Path. As to the general
negligence claim, Shelter Clean argued that any duty of care it
owed was limited in scope by the terms of the Contract, and that
it did not have a contractual duty to repair the asphalt, perform
landscaping, maintain the roots from the adjacent property,
perform inspections for the type of condition that Silva alleged
caused his accident and injuries, or warn Silva of that specific
condition.
Opposing Papers
In his opposition, Silva argued that Shelter Clean is subject
to premises liability because it exercised control over the Bike
Path under the Contract, and that it owed Silva a duty to report
hazardous conditions based on the obligations that it assumed
under the Contract as well as the rule that all persons are
required to use ordinary care to prevent others from being
injured by their conduct. Also, Shelter Clean owed Silva a duty
to fix the crack or warn him.
Silva submitted an expert declaration from Brad Avrit
(Avrit), a civil engineer. He opined that “the subject area
constituted a fundamentally dangerous condition of public
property,” and that Shelter Clean “failed to make any repairs or
note any sections where repairs were necessary and therefore
failed to fulfill [its] contractual maintenance work with [City].
Performing cold AC patching, for example, would have eliminated
the dangerous condition.” Avrit interpreted the Contract as
11
requiring Shelter Clean to “remedy the subject cracking in the
asphalt, alert [City] to the existence of the subject cracking, or
subcontract the repair work to another company better suited to
the Bike Path’s maintenance.” Robert Shanteau (Shanteau), a
professional traffic engineer, supplied another expert declaration.
He stated, “[E]ven if reporting and repairing the hazardous
condition were not specifically named duties in the [Contract], as
City’s maintenance contractor, Shelter Clean should still have
notified City of the hazard so that the City could address it.
Reporting hazardous conditions is part of maintenance in
general.”
Ruling
The trial court granted Shelter Clean’s motion for summary
judgment. According to the trial court, Shelter Clean was not
subject to premises liability because it did not own, possess, or
control the Bike Path. With respect to general negligence, the
trial court explained that Shelter Clean did not owe a duty of care
either based on the Contract or public policy pursuant to
Rowland v. Christian (1968) 69 Cal.2d 108, 117 (Rowland). The
trial court relied on its determination that Shelter Clean did not
have the power or right to act on the hazard by reporting it,
placing warnings around it, or repairing it, and it therefore did
not have the power or right to remedy the hazard. It specifically
concluded the Rowland factors “militate against a finding that
Shelter Clean had a duty to inspect and act on subject hazard,”
and that it did not have a duty to post warnings about the crack.
Silva’s Appeals
Silva appealed from both summary judgments.
12
DISCUSSION
I. Standard of Review.
When reviewing summary judgment, we “determine de
novo whether a triable issue of material fact exists and whether
the moving party was entitled to summary judgment as a matter
of law. [Citation.]” (Alexander v. Codemasters Group Limited
(2002) 104 Cal.App.4th 129, 139.) Our task is to “consider all of
the evidence and all of the inferences reasonably drawn
therefrom,” and to view “such evidence in the light most favorable
to the opposing party. [Citation.]” (Ibid.) A triable issue of fact
exists only if a trier of fact could reasonably conclude under the
applicable standard of proof that a contested fact in favor of the
opposing party is established. (Ibid.)
“On appeal from a summary judgment based on a trial
court’s interpretation of a contract, we are not bound by that
interpretation (1) if there is no extrinsic evidence concerning its
interpretation, (2) if there is no conflict in such evidence, or
(3) . . . the conflicting extrinsic evidence is of a written nature
only.” (Department of Forestry & Fire Protection v. Lawrence
Livermore National Security, LLC (2015) 239 Cal.App.4th 1060,
1066.)
II. Summary Judgment for City.
Section 831.412 establishes that a public entity “is not liable
for an injury caused by a condition of:
“(a) Any unpaved road which provides access to fishing,
hunting, camping, hiking, riding, including animal and all types
12 Silva requests that we take judicial notice of letters and bill
reports in the legislative history of section 831.4. The request is
hereby granted.
13
of vehicular riding, water sports, recreational or scenic areas and
which is not a (1) city street or highway or (2) county, state or
federal highway or (3) public street or highway of a joint highway
district, boulevard district, bridge and highway district or similar
district formed for the improvement or building of public streets
or highways.
“(b) Any trail used for the above purposes.”
Silva’s injuries were caused by a condition of the Bike Path,
which is a class I bikeway. A class I bikeway “is a ‘trail’ within
the definition of section 831.4, subdivision (b).” (Farnham v. City
of Los Angeles (1998) 68 Cal.App.4th 1097, 1101 (Farnham); see
also Carroll v. County of Los Angeles (1997) 60 Cal.App.4th 606,
607; Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413,
417.) City is entitled to absolute immunity and summary
judgment was proper.
Pushing back, Silva argues that City is not entitled to
immunity unless it attempted to warn the public of the hazard,
as required in section 831.4, subdivision (c). That subdivision
provides that a public entity is not liable for an injury caused by
a condition of “[a]ny paved trail . . . on an easement of way which
has been granted to a public entity, which easement provides
access to any unimproved property, so long as such public entity
shall reasonably attempt to provide adequate warnings of the
existence of any condition of the paved trail, walkway, path, or
sidewalk which constitutes a hazard to health or safety.”
(§ 831.4, subd. (c).)
Silva argues that the Bike Path is on an easement of way
because it was built on the District’s right of way leading to the
beach, which is unimproved property. He contends that City’s
liability is governed by section 831.4, subdivision (c), and that
14
there is a triable issue as to whether City reasonably attempted
to provide a warning of the crack.13
In essence, Silva argues that the warning requirement in
section 831.4, subdivision (c) applies to subdivision (b) whenever
a trail is on an easement of way leading to unimproved property.
But as Farnham noted, “The Legislature could have easily chosen
to make subdivision (b)’s ‘any trail’ subject to the same warning
requirements of subdivision (c) and opted not to do so[.]”
(Farnham, supra, 68 Cal.App.4th at p. 1102.) Moreover,
“Legislative history indicates . . . that [section 831.4], subdivision
(c), which was enacted after subdivisions (a) and (b) [citation],
was not intended to limit existing immunity in any way, but
rather to expand it. [Citations.] No intent to limit the meaning
of a ‘trail’ under subdivision (b) is apparent in the enactment of
subdivision (c) of section 831.4.” (Amberger-Warren v. City of
Piedmont (2006) 143 Cal.App.4th 1074, 1082.)
In any event, we do not accept that the Bike Path is on an
easement of way. Prokop v. City of Los Angeles (2007) 150
Cal.App.4th 1332 (Prokop) held that a class I bikeway running
along the Los Angeles River was “clearly not an easement of way
for access to unimproved property.” (Id. at p. 1342.) The trial
court observed that the exclusive emphasis of section 831.4,
13 The portion of the Bike Path operated by City runs from
Sepulveda Boulevard to Lincoln Boulevard, and neither
boulevard qualifies as unimproved property. Even if Silva is
correct that the Bike Path continues past Lincoln Boulevard and
ends at the beach, access to the beach is not provided by the
easement granted to City. Rather, it is provided by a different
portion of the District’s right of way. For our analysis, this is a
moot point. As we discuss, section 831.4, subdivision (c) simply
has no application to this case.
15
subdivision (c) is access (id. at p. 1342), tacitly determining that
the main purpose of a class I bikeway is recreation. Silva argues
that Prokop is distinguishable because the class I bikeway in that
case did not lead to unimproved property whereas the Bike Path
leads to the beach. We find the distinction immaterial. Even
though the Bike Path leads to the beach, Agreement 28424,
Agreement 34220, and Agreement 34222 refer to future
recreational facilities, recreational development, and bicycle
facilities, and the last of those agreements was referred to as
“RECREATIONAL AGREEMENT.” None of these agreements
refer to the beach or unimproved property. The exclusive
emphasis of the Bike Path is recreation. Aside from that, we
decline to treat one class I bikeway different than the next simply
based on where each begins or ends.
III. Summary Judgment for Shelter Clean.
Contrary to what Silva argues, Shelter Clean did not have
either a contractual or a noncontractual duty to inspect for the
crack, report the crack to City, or warn the public about the crack
with a sign or caution tape.
When an independent contractor assumes a contractual
duty, public policy may dictate that it owes a duty to use ordinary
care to prevent a third party from being injured due to their
conduct. (De Lima v. Magnesite Waterproofing & Refinishing
(1987) 191 Cal.App.3d 776, 782.)
To determine Shelter Clean’s contractual duties, we must
engage in contract interpretation, the rules of which task a court
with determining the parties’ mutual intent. The language of a
contract governs its interpretation if the language is clear and
explicit. But if the language is ambiguous because it is
reasonably susceptible to more than one meaning, parol evidence
16
is admissible to aid interpretation. A court can consider, inter
alia, the whole contract when construing select language; the
circumstances under which a contract was made; the course of
dealing between the parties; and the custom and practice in the
industry. (Southern Pacific Transportation Co. v. Santa Fe
Pacific Pipelines, Inc. (1999) 74 Cal.App.4th 1232, 1240–1241;
Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009)
175 Cal.App.4th 64, 72–73; Midwest Television, Inc. v. Scott,
Lancaster, Mills & Atha, Inc. (1988) 205 Cal.App.3d 442, 451.)
Parol evidence can be considered to resolve patent ambiguities as
well as to reveal and resolve latent ambiguities. (Zissler v.
Saville (2018) 29 Cal.App.5th 630, 644.) When the parties did
not agree to the meaning of terms, “the conduct of the parties
after the execution of the contract, and before any controversy
arose, may be considered in order to attempt to ascertain the
parties’ intention.” (Oceanside 84, Ltd. v. Fidelity Federal Bank
(1997) 56 Cal.App.4th 1441, 1449.)
The Contract does not require Shelter Clean to place
warnings, be they signs or caution tape. With respect to Shelter
Clean’s duty to inspect and report, the Contract is ambiguous.
While it requires Shelter Clean to inspect for cracks, it does not
clarify the type of cracks. The Contract provides that Shelter
Clean must report emergency situations and problems, but it
does not define those terms.
To aid interpretation, Shelter Clean offered evidence of the
postcontract, predispute conduct of itself and City. That evidence
revealed that City inspected the Bike Path once a month. Shelter
Clean removed and reported fallen trees, it trimmed branches,
and kept the Bike Path free of other debris. It did not maintain
roots. It did not repair or report cracks and uneven asphalt. On
17
occasion, it patched small cracks with cold asphalt (albeit at
different bike path facilities) when City made a request. If a
warning was necessary, City posted it. The evidence establishes
that emergency situations and problems subject to being reported
were situations such as fallen trees making the Bike Path
impassable, and that Shelter Clean was not required to put up
warnings. While a crack or pothole impeding passage on the Bike
Path would fit the definition of an emergency situation or
problem, a crack the size of the one that caused Silva’s accident
did not.
To show a triable issue, Silva adverts to the declarations of
Avrit and Shanteau. They did not, however, offer evidence of
custom and practice in Shelter Clean’s industry regarding what
kind of cracks it should inspect for or the meaning of “emergency
situation” or “problems.” Rather, they simply offered opinions on
what Shelter Clean should have done. This evidence is not
extrinsic evidence we can consider. Insofar as Silva offers these
declarations as expert opinions on the meaning of the Contract,
the declarations must be ignored. Contract interpretation is a
question of law for the courts. For that reason, “[e]xpert opinion
on the legal interpretation of contracts has . . . been found to be
inadmissible[.]” (Summers v. A .L. Gilbert Co. (1999) 69
Cal.App.4th 1155, 1180 (Summers); In re Tobacco Cases (2010)
186 Cal.App.4th 42, 51 [“the interpretation of contractual
language is a legal matter for the court”]; Gilkyson v. Disney
Enterprises, Inc. (2021) 66 Cal.App.5th 900, 921.)14
14 Summers identifies Neal v. Farmers Insurance Exchange
(1978) 21 Cal.3d 910 (Neal) as the “one possible exception to the
rule against expert opinion on issues of law,” but then explains
that “[c]lose scrutiny of the court’s decision in Neal reveals it
18
We next examine whether Shelter Clean owed Silva any
duties based on noncontract principles.
Each person “is responsible . . . for an injury occasioned to
another by his or her want of ordinary care or skill in the
management of his or her property or person[.]” (Civ. Code,
§ 1714, subd. (a).) “The conclusion that a defendant did not have
a duty constitutes a determination by the court that public policy
concerns outweigh, for a particular category of cases, the broad
principle enacted by the Legislature that one’s failure to exercise
ordinary care incurs liability for all the harms that result.”
(Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1143 (Kesner).)
In determining whether policy considerations weigh in favor of an
exception to the general rule, the most important factors have
been listed by our Supreme Court: foreseeability of the harm to
the plaintiff, the degree of certainty that the plaintiff suffered
injury, the closeness of the connection between the defendant’s
conduct and the injury suffered, 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 a duty to exercise due care with resulting
liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved. (Kesner, supra, 1 Cal.5th at
pp. 1149–1150, citing Rowland.)
When a court is deciding whether a party has a legal duty,
“a distinction is drawn between claims of liability based upon
misfeasance and those based upon nonfeasance.” (Seo v. All-
Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202 (Seo).)
“Liability for misfeasance is based on the general duty of
actually involved an expert opinion on a factual issue rather than
a legal one[.]” (Summers, supra, 69 Cal.App.4th at p. 1180.)
19
ordinary care to prevent others from being injured by one’s
conduct. [Citations.] Liability for nonfeasance is limited to
situations in which there is a special relationship that creates a
duty to act. [Citations.]” (Ibid.) The general rule is that no one
has a duty to come to the aid of another. Thus, a person who has
not created a peril is not liable in tort for the mere failure to take
affirmative action to assist or protect another. “Because the
traditional weighing process using the seven factors set forth in
[Rowland] ‘has already been done by courts over the centuries in
formulating that “no duty to aid” rule’ in the context of liability
for nonfeasance, it is not necessary to engage in the weighing
process in a particular case. [Citation.]” (Seo, supra, 97
Cal.App.4th at p. 1203.)
The threshold question is whether the claims against
Shelter Clean are based on malfeasance or nonfeasance. We
conclude that it is the latter.
As alleged in Silva’s first amended complaint, City “had
notice both actual and constructive” of the dangerous condition
and “recklessly disregarded” it. City’s agreements with District
obligated it to maintain the Bike Path, and a City employee
inspected the Bike Path at least once a month. Although City
sought a proposal for fixing asphalt somewhere on the Bike Path,
it rejected the Proposal. While City could have hired someone to
inspect for and report and repair cracks such as the one at issue,
it did not do so. City is responsible for the management of the
condition of the asphalt and is, accordingly, responsible for the
existence of the crack. The bottom line is that Shelter Clean did
not create the peril, and it did not have a duty to take affirmative
action to protect the public.
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Shelter Clean can be held liable only if it had a special
relationship with Silva. But that is not Silva’s theory of liability,
which brings our analysis to a close.
All other issues are moot.
DISPOSITION
The summary judgments entered in favor of City and
Shelter Clean are affirmed. City and Shelter Clean shall recover
their 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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