Pena v. City of Arroyo Grande CA2/6

Filed 10/5/22 Pena v. City of Arroyo Grande CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

REMIGIO PENA, 2d Civ. No. B306869

(Super. Ct. No. 18CV-0114)

Plaintiff and Appellant, (San Luis Obispo County)

v.

CITY OF ARROYO GRANDE,

Defendant and Respondent.

Remigio Pena was riding his motorcycle southbound on

Halcyon Road near its T-intersection with The Pike in the City of

Arroyo Grande (City). Carl Tucker was driving westbound

toward the intersection along a private driveway. Before

entering the intersection, Tucker drove past the wooden stop sign

on the driveway to a point where he could clearly see the traffic

coming in both directions. He then stopped. After looking left

twice and right once and seeing “zero traffic,” Tucker moved into

the intersection and struck Pena.

Pena sued multiple defendants, including the City. He

contends that visual obstructions to the north of the driveway,

the configuration of the intersection, sight lines in the

intersection and the absence of a stop sign on Halcyon Road

created a dangerous condition of public property which

contributed to the accident. (See Gov. Code, § 835.)1

The City moved for summary judgment on Pena’s first

amended complaint (FAC) arguing that “(1) the property

described in the FAC is not a dangerous condition as a matter of

law under . . . section 830(a); (2) the property was not the

proximate cause of [Pena’s] injuries; and (3) the City is entitled to

immunity under . . . section 830.4.” The trial court found no

triable issues of material fact and granted summary judgment on

all three bases. We affirm.

I. FACTUAL BACKGROUND

The Pike is a two-lane road running east-west, controlled

by a stop sign at its termination with Halcyon Road, creating a T-

intersection. Across from The Pike, the private driveway from

Halcyon Estates Mobile Park (Halcyon Estates) intersects with

the eastern side of Halcyon Road, which has a posted speed limit

of 40 miles per hour. At the time of the collision, Halcyon Road

was a through street, uncontrolled by stop signs at its

intersection with The Pike. The Pike had a stop sign at the

Halcyon Road intersection.

On the north side of the Halcyon Estates exit is a berm

containing trees, a telephone pole, traffic signs and ice plants.

Depending on the location of a vehicle exiting the driveway, the

1All statutory references are to the Government Code

unless otherwise stated.

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driver’s view of Halcyon Road looking north (to the right) is

obscured by the berm’s features.

Near the Halcyon Estates exit is a small wooden stop sign

that is within view of Halcyon Road when entering the

intersection. “It [was] unclear to the [trial court] whether this

small wooden stop sign exists on Halcyon’s private property, or

the City’s property.” The City denies it installed the stop sign.

On August 18, 2017, Tucker, who had lived at Halcyon

Estates for 15 years, drove his car to the end of the private

driveway. As was his custom, Tucker did not stop at the sign.

He explained that the trees and telephone pole on the berm

obscure the view of southbound traffic at that point. Instead,

following his normal routine, Tucker drove the car towards

Halcyon Road until he had a clear view of the oncoming

southbound and northbound traffic.

Seeing “zero traffic” and “no traffic all three ways,” Tucker

slowly entered the intersection, “like an old slowpoke.” Pena’s

motorcycle and Tucker’s vehicle collided in the intersection. Pena

did not see Tucker’s vehicle until it was approximately four to

five feet from his motorcycle. Tucker did not see Pena’s

motorcycle until the moment of impact. Pena, who was thrown

from his motorcycle, suffered a broken leg and other injuries.

Zak Ayala, the City police officer who investigated the

accident, concluded that Tucker caused the accident by violating

Vehicle Code section 21804, subdivision (a), which requires

drivers exiting private property to yield the right-of-way to all

approaching traffic close enough to constitute a hazard. Ayala

determined the berm “does not appear to have been a factor in

the subject collision,” and stated he was “unaware of any other

collisions at the intersection of Halcyon Road and The Pike

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involving drivers entering the intersection from Halcyon

Estates.”

II. PROCEDURAL HISTORY

Pena’s FAC alleges claims for negligence against Tucker

and Halcyon Estates and claims for premises liability against

Halcyon Estates and the City. The City’s alleged liability is

based upon a dangerous condition of public property (§ 835).

The City filed a cross-complaint against Tucker and

Halcyon Estates seeking equitable indemnity and declaratory

relief. Tucker was dismissed from the cross-complaint after the

trial court found his settlement with Pena was made in good

faith.

Halcyon Estates and the City filed separate motions for

summary judgment. The trial court denied Halcyon Estates’

motion. In granting the City’s motion, the court concluded Pena

had failed to raise a triable issue of material fact regarding (1)

whether the property at issue is a dangerous condition under

section 830, subdivision (a); (2) whether the property proximately

caused his injuries; (3) whether the City had both actual and

constructive notice of the alleged dangerous condition; and (4) the

City’s immunity under section 830.4.

With respect to causation, the trial court stated: “To

recover for injuries based on a dangerous condition of public

property, the plaintiff must establish that ‘the injury was

proximately caused by the dangerous condition.’ [§ 835.] The

City argues that the undisputed facts prove that the berm and

the other ‘generalized factors [such as] signage and failure to

paint a limit line . . . the absence of a stop sign, an “offset

driveway” [and] “elevation changes” on Halcyon Road’ had

nothing to do with the subject accident, and that it was solely

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Tucker’s negligence that caused this collision. [¶] Tucker

testified that he had an adequate view in both directions on the

date of the accident, and was cited for violating . . . Vehicle Code

section 21804(a). According to the City, even if the berm is a

dangerous condition, it is not the proximate cause of [Pena’s]

injuries. . . . Indeed, arguendo, if creeping forward is a dangerous

condition, it did not proximately cause [Pena’s] injuries because

[he] was not injured in the spot where Tucker crept his vehicle

forward. [Pena] was injured after Tucker maneuvered his vehicle

into the intersection, after he had cleared all potential visual

obstructions. Thus, Tucker’s creeping did not proximately cause

[Pena’s] injuries.” (Fns. and underlining omitted.)

III. DISCUSSION

Pena contends triable issues of material fact exist

regarding whether a dangerous condition of public property

proximately caused his collision with Tucker. He also argues

that statutory immunities do not apply.

A. Standard of Review

A defendant moving for summary judgment or adjudication

may demonstrate that the plaintiff’s cause of action has no merit

and that the defendant is entitled to judgment as a matter of law

by showing that the plaintiff cannot establish one or more

elements of the cause of action. (Code Civ. Proc., § 437c, subds.

(a)(1), (f), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 849, 853 (Aguilar).) The defendant may make such

a showing by affirmatively proving that a specified fact does not

exist or by showing that the plaintiff has no evidence to prove

that fact. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749,

756.) Once the defendant meets its threshold burden, the burden

shifts to the plaintiff to present evidence showing that a triable

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issue of one or more material facts exists as to that cause of

action. (Code Civ. Proc., § 437c, subd. (p)(1), (2); Aguilar, at

p. 850.)

We review an order granting summary judgment de novo,

employing the same analysis as the trial court. (Aguilar, supra,

25 Cal.4th at p. 860; Hamburg v. Wal-Mart Stores, Inc. (2004)

116 Cal.App.4th 497, 503.) We view the evidence in a light

favorable to the party opposing summary judgment, liberally

construing that party’s evidence while strictly scrutinizing the

moving party’s showing and resolving all doubts in favor of the

opposing party. (Patterson v. Domino’s Pizza, LLC (2014) 60

Cal.4th 474, 499-500.) We consider all the evidence offered in the

trial court except that which the court properly excluded. (Wilson

v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717.)

B. No Triable Issues of Material Fact Exist

Regarding Causation

The City contends there is sufficient space for Halcyon

Estates’ residents to pull their vehicles forward toward Halcyon

Road to obtain an unobstructed view in both directions and to

safely enter the roadway. Pena disagrees, arguing that to “clear

the visual obstruction from both the berm (hills ground cover,

shrubs, and trees) and the traffic signs and pole at the edge of

Halcyon Road, a vehicle exiting the [mobile home] park must pull

up so far as to actually encroach into the roadway of Halcyon

Road.”

Section 835 “prescribes the conditions under which a public

entity may be held liable for injuries caused by a dangerous

condition of public property. [Citation.] [It] provides that a

public entity may be held liable for such injuries ‘if the plaintiff

establishes that the property was in a dangerous condition at the

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time of the injury, that the injury was proximately caused by the

dangerous condition, [and] that the dangerous condition created a

reasonably foreseeable risk of the kind of injury which was

incurred.’ In addition, the plaintiff must establish 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) ‘[t]he public entity had . . . notice

of the dangerous condition . . . a sufficient time prior to the injury

to have taken measures to protect against the dangerous

condition.’” (Cordova v. City of Los Angeles (2015) 61 Cal.4th

1099, 1105 (Cordova); see Zelig v. County of Los Angeles (2002) 27

Cal.4th 1112, 1131-1132 (Zelig) [a public entity’s liability as a

property owner must be evaluated under section 835 and not

under general negligence principles].)

A dangerous condition is “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.” (§ 830, subd. (a).)

With respect to public roadways, “‘a public entity is only required

to provide roads that are safe for reasonably foreseeable careful

use. [Citation.] “If . . . it can be shown that the property is safe

when used with due care [generally] and that a risk of harm is

created only when foreseeable users fail to exercise due care, then

such property is not ‘dangerous’ within the meaning of section

830, subdivision (a).”’” (Thimon v. City of Newark (2020) 44

Cal.App.5th 745, 754-755 (Thimon).)

“[T]hird party conduct by itself, unrelated to the condition

of the property, does not constitute a ‘dangerous condition’ for

which a public entity may be held liable.” (Peterson v. San

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Francisco Community College Dist. (1984) 36 Cal.3d 799, 810;

Zelig, supra, 27 Cal.4th at p. 1134.) Nonetheless, a finding of a

dangerous condition is not precluded even where a third party’s

negligence was a proximate cause of the plaintiff’s injuries.

(Bonanno v. Central Contra Costa Transit Authority (2003) 30

Cal.4th 139, 152-153 & fn. 5.) “When a third party’s conduct is

the immediate cause of a plaintiff’s harm, the question becomes

whether the dangerous condition ‘increased or intensified’ the

risk of injury from the third party’s conduct.” (Thimon, supra, 44

Cal.App.5th at p. 754; Cerna v. City of Oakland (2008) 161

Cal.App.4th 1340, 1348.) When addressing this question, courts

must separate the issue of causation from the issue of dangerous

condition. (Cordova, supra, 61 Cal.4th at p. 1106.) “A condition

of public property may constitute a ‘dangerous condition’ even

though it does not proximately cause [the] injury in a particular

case.” (Ibid.)

Although Pena challenges each aspect of the trial court’s

ruling, we conclude the issue of causation is dispositive. Even

assuming a triable issue exists regarding whether a condition at

or near the accident site on August 18, 2017 created a substantial

risk of injury when used with due care, Pena’s moving papers

failed to raise a triable issue regarding whether such a condition

proximately caused his injuries.

The requisite causal link between a dangerous condition

and the plaintiff’s injuries may be established if the public

entity’s conduct and the conduct of another party concur as

proximate causes of the plaintiff’s injury. (Harland v. State of

California (1977) 75 Cal.App.3d 475, 485.) To establish

causation, therefore, Pena must show that a physical condition of

the City’s property was a “‘substantial factor’” in bringing about

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his harm. (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 312.)

A plaintiff may prove causation through direct and

circumstantial evidence and reasonable inferences drawn from

that evidence. (Ibid.) But we cannot draw inferences “‘from thin

air.’” (Ibid.)

The City met its threshold burden of presenting evidence to

show that Pena’s injuries were caused by Tucker’s actions and

not by a dangerous condition at the accident site. The burden

then shifted to Pena to produce evidence showing a triable issue

of material fact regarding the necessary causal link. (Leyva v.

Garcia (2018) 20 Cal.App.5th 1095, 1105 (Leyva).)

To prove causation, Pena relied primarily upon the

declaration of his human factors expert, Jason A. Droll. Droll

opined that Tucker was distracted from southbound traffic

because (1) he had to be inordinately vigilant to northbound

traffic as he was stuck in the northbound lane; (2) in order to

escape the hazardous situation in the northbound lane, he was

expected to accept smaller gaps in traffic than he might

ordinarily accept; (3) once he made a decision to cross the

intersection, there was inadequate time to correct his initial

decision to cross; and (4) the alignment of The Pike and the

Halcyon Estates’ driveway forced Tucker to veer to the right 19.5

feet closer to southbound traffic to avoid any eastbound driver on

The Pike.

Based upon these opinions, Pena asserts that “a driver in

. . . Tucker’s situation would be expected to be so distracted by

looming threats to his left and directly across from him, that a

previously undetectable threat to his right may have emerged by

the time it was too late.” It is well established, however, that an

expert’s opinion based on assumptions of fact without evidentiary

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support has no evidentiary value. (Jennings v. Palomar

Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108,

1117.) Proof of causation may be by direct or circumstantial

evidence, but it must be by substantial evidence. Evidence that

leaves the determination of these essential facts in the realm of

mere speculation and conjecture is insufficient. In other words,

“‘[i]f [the expert's] opinion is not based upon facts otherwise

proved, or assumes facts contrary to the only proof, it cannot rise

to the dignity of substantial evidence.’ [Citation.]” (People v.

ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 83; see

Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 484

[expert’s opinion that a broken security gate was a substantial

factor in bringing about a rape could not defeat summary

judgment without any evidence that the rapist entered through

the gate].)

Pena offered no evidence, such as corroborating eyewitness

statements or conflicting testimony by Tucker, that Droll’s

theories reflect reality. (See Bowman, supra, 186 Cal.App.4th at

p. 313.) It is undisputed that, depending on where a vehicle is on

the Halcyon Estates private driveway, the driver’s view of

oncoming southbound traffic on Halcyon Road may be obstructed.

But Tucker had travelled past those obstructions as he

approached Halcyon Road. The undisputed evidence establishes

that before Tucker drove into the intersection and collided with

Pena, Tucker was able to stop in a position where he had a clear

view of oncoming traffic in both directions.

Tucker testified that he probably did not see Pena because

he did not properly look both ways before moving into the

intersection. He stated: “It’s an old-school children’s thing. You

look left, you look right, then you look left and right again. I

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probably just missed looking right again.” Indeed, Tucker was

cited for violating Vehicle Code section 21804, subdivision (a),

which states: “The driver of any vehicle about to enter or cross a

highway from any public or private property, or from an alley,

shall yield the right-of-way to all traffic, as defined in [Vehicle

Code] [s]ection 620, approaching on the highway close enough to

constitute an immediate hazard, and shall continue to yield the

right-of-way to that traffic until he or she can proceed with

reasonable safety.”

There is no evidence that the alleged dangerous conditions

diverted Tucker’s attention or otherwise brought about the

collision. Pena emphasizes Droll’s statement that “[f]urther to

the north, South Halcyon Road has a vertical drop, limiting a

driver’s view on The Pike or the mobile home driveway to see

approaching southbound vehicles.” Droll does not opine that this

was a cause of the accident, and Pena simply speculates that it

could have been a factor.

We also are not persuaded by Pena’s argument that Tucker

caused the accident by “creeping” partway into Halycon Road to

obtain the unobstructed view of the northbound and southbound

lanes. Even assuming that did occur, we agree with the trial

court that the “creeping” onto Halycon Road did not proximately

cause Pena’s injuries. Pena was injured after Tucker left that

spot and drove directly into the intersection.

Moreover, “[t]he practice of stopping at a limit line and

then ‘creeping’ forward to a point of visibility has long been

recognized as ‘practical’ under California Law. (See Smith v.

Pellissier (1955) 134 Cal.App.2d 562, 570).” (Hefner v. County of

Sacramento (1988) 197 Cal.App.3d 1007, 1016, abrogated on

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other grounds by Cornette v. Department of Transportation (2001)

26 Cal.4th 63, 73-74 & fn. 3.)

In sum, there is no basis in the record for a jury to

reasonably find that a dangerous condition was a factor, let alone

a substantial one, in bringing about Pena’s injuries. In the

absence of evidence creating a triable issue of material fact

regarding causation, summary judgment was properly granted.

(See Leyva, supra, 20 Cal.App.5th at p. 1105.) Given our

conclusion, we need not discuss the parties’ other arguments.

IV. DISPOSITION

The judgment is affirmed. The City shall recover its costs

on appeal.

NOT TO BE PUBLISHED.

PERREN, J.*

We concur:

GILBERT, P.J.

YEGAN, J.

* Retired Associate Justice of the Court of Appeal, Second

Appellate District, assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.

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Tana L. Coates, Judge

Superior Court County of San Luis Obispo

______________________________

Ernst Law Group, Don A. Ernst and Nigel A. Whitehead;

Esner, Chang & Boyer, Andrew N. Chang and Kevin K. Nguyen,

on behalf of Plaintiff and Appellant.

Adamski Moroski Madden Cumberland & Green, Joshua

M. George and Chase W. Martin; Pollak, Vida & Barer, Daniel P.

Barer and Judy L. McKelvey, on behalf of Defendant and

Respondent.

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