Rodriguez v. Colorado CA2/7

Filed 7/3/23 Rodriguez v. Colorado CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JOHN RODRIGUEZ, B318828

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. BC665690)

v.

EMILIO COLORADO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of

Los Angeles County, Peter A. Hernandez, Judge. Affirmed.

Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Tracy D.

Forbath and Philip N. Blanco for Defendant and Appellant.

Law Offices of Mauro Fiore, Jr., Mauro Fiore, Jr.,

Krystale L. Rosal; Law Offices of Lisa J. Jackson and Lisa J.

Jackson for Plaintiff and Respondent.

____________________________

John Rodriguez sued Emilio Colorado for the injuries

Rodriguez suffered when Colorado’s vehicle collided with

Rodriguez’s motorcycle. The jury found Colorado responsible for

100 percent of Rodriguez’s damages.

On appeal from the judgment in favor of Rodriguez,

Colorado contends the trial court erred in refusing to instruct the

jury concerning the liability of the public entities responsible for

the dangerous condition of the public property on which the

accident occurred. He also contends the trial court erred by

omitting the cities from the special verdict form, which precluded

the jury from determining the cities’ proportionate fault for

Rodriguez’s injuries. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Rodriguez’s Complaints, the Defendants’ Cross-

complaints and the Settlements

On June 20, 2017 Rodriguez filed a complaint (Los Angeles

Superior Court Case No. BC665690) against the City of

Irwindale, the California Department of Transportation

(Caltrans), the County of Los Angeles, Tony Lai and Doe

defendants.1 He alleged he was riding his motorcycle south on

Azusa Canyon Road and approaching the intersection with

Nubia Street when he was struck by a vehicle driven by Colorado,

who was turning from eastbound Nubia Street onto

Azusa Canyon Road. Rodriguez asserted the governmental

entities were liable for the dangerous condition of public

1 Rodriguez subsequently filed requests for dismissal of

Caltrans and the County of Los Angeles. We augment the record

on our own motion to include Rodriguez’s December 14, 2017

request for dismissal of Caltrans. (Cal. Rules of Court,

rule 8.155(a)(1)(A).)

2

property, the intersection. He specifically alleged the public

entities improperly failed to cut or trim the trees, shrubbery and

other vegetation to allow visibility; failed to restrict public

parking along the curbs at the intersection to allow for better

visibility for motorists entering the intersection; and failed to

provide adequate and proper warnings and signs (traffic signals,

flashing lights) about the intersection’s condition. He further

alleged that the entities knew motorists pulling out from

Nubia Street at the intersection with Azusa Canyon Road could

not see or judge the speed, distance or existence of traffic on

Azusa Canyon Road and that the dangerous conditions were

unknown to motorists using the roadway, creating a trap at the

intersection. As for Lai, Rodriguez alleged he was negligent in

maintaining his property, a lot on Nubia Street at the

intersection, and allowed vegetation in his yard to become so

overgrown that it obscured the vision of motorists, including

Colorado.

In November 2017 Rodriguez amended his June 2017

complaint by substituting the City of Baldwin Park for a Doe

defendant. In December 2017 Baldwin Park filed a cross-

complaint against Lai for contribution, equitable comparative

indemnity, total equitable indemnity and other causes of action.

Irwindale subsequently filed a cross-complaint alleging causes of

action that included contribution, partial equitable indemnity

and total equitable indemnity against Colorado and Lai; and Lai

filed a cross-complaint alleging causes of action that included

contribution and equitable indemnity against Irwindale, Baldwin

Park and Colorado.

In February 2018, in a separate action (Los Angeles

Superior Court Case No. BC693398), Rodriguez filed a complaint

3

against Colorado for negligence. Rodriguez alleged Colorado

negligently operated his vehicle, causing it to collide with

Rodriguez’s motorcycle. In July 2018 the trial court ordered

Rodriguez’s two cases consolidated. In August 2018 Colorado

filed a cross-complaint against Irwindale, Baldwin Park and Lai

for indemnity and contribution, alleging Rodriguez sustained

injuries as a result of the three cross-defendants’ negligence.

In 2020, after Rodriguez settled with Irwindale and Lai,

the trial court granted Irwindale’s and Lai’s motions for

determination of good faith settlement. Rodriguez filed requests

for dismissal with prejudice as to Lai and Irwindale. On August

23, 2021 Rodriguez filed a Judicial Council form notice of

settlement of entire case, with the words “of entire case” crossed

out. The notice stated a request for dismissal would be filed no

later than October 25, 2021 and included the words “Only as to

Defendant, City of Baldwin Park.”2 Baldwin Park moved for a

determination of good faith settlement on August 30, 2021. At

the September 7, 2021 final status conference Colorado’s counsel

said he did not oppose the good faith settlement motion, and the

trial court granted the motion. The court told Baldwin Park’s

counsel, without objection from any of the parties, that Baldwin

Park was no longer in the case and referred to Colorado as the

remaining defendant.3

2 We have omitted, where unnecessary, the capitalization of

letters, underlining, italics and bold font in documents quoted.

3 We augment the record on our own motion to include the

court’s September 7, 2021 order granting Baldwin Park’s motion

for good faith determination of settlement.

4

2. The Jury Trial

The jury trial against Colorado commenced on

September 9, 2021. In his testimony Rodriguez explained that on

June 9, 2016, the date of the accident, he was riding his

motorcycle south on Azusa Canyon Road, which had two lanes in

that direction; wearing a helmet; moving at the 40-mile-per-hour

speed limit; and traveling in the number one lane—the lane

closer to the center of the road—rather than the number two

lane, to avoid any car coming out of a driveway or street. He also

testified there were two large work vans parked on the curb of

Azusa Canyon Road and at the corner of the intersection with

Nubia Street. The parked vans—as well as a big tree with

overhanging branches on Lai’s property on the intersection’s

corner—blocked Rodriguez’s view of the intersection. Asked to

look at the red curb in a picture, he testified the cars had been

parked at that location but not all of the curb had been painted

red at the time of the accident.

Colorado testified he intended to make a left turn from

Nubia Street to travel north on Azusa Canyon Road. When he

reached the stop sign on Nubia Street at the intersection, he

noticed there was no stop sign or traffic light at the intersection

for Azusa Canyon Road. He checked the road for traffic, but

there were cars to the side, parked along the curb line, that

obstructed his view. He pulled forward, but still could only see a

little bit of the southbound traffic on Azusa Canyon Road.

Although he “couldn’t really see” and acknowledged it would have

been better to be certain the road was clear before starting a left

turn across the road’s southbound lanes, he decided to proceed

with the turn because he nevertheless thought it was safe.

5

Rodriguez’s medical expert provided testimony concerning

Rodriguez’s injuries. Rodriguez’s nephew testified regarding the

physical and mental effects of the accident on Rodriguez.

Finally, the parties played clips of the videotaped

deposition testimony of Felix Lee, an expert in accident

reconstruction retained by Rodriguez, and Ed Ruzak, a highway

engineer whom Rodriguez also hired to provide his expert

opinion. No witnesses from Irwindale or Baldwin Park were

called. The parties did not introduce into evidence any

photographs of the accident scene that may have been taken on,

or shortly after, the date of the collision.

a. Lee’s expert testimony

After he was retained by Rodriguez, Lee visited the scene of

the accident4 and took measurements and photographs, including

photographs using a drone, as part of his accident reconstruction

analysis. Lee explained he manipulated the drone photographs

by adding in “vehicles and whatnot” and, to create the general

background for his reconstruction, overlaid an image from Google

Earth from “around the . . . date of [the] incident” on stitched-

together drone photographs.

Lee opined that the presence of vehicles parked along the

northwest curb of Azusa Canyon Road obstructed the sight line

between Rodriguez and Colorado, leading to their collision. In

support of his opinion Lee testified the amount of time required

for a vehicle making a typical left turn to clear all the southbound

4 Lee testified he visited the scene of the June 2016 accident

on February 17th without indicating whether it was February 17,

2017, which would have been before Rodriguez filed his

complaint, or a date closer to the September 2021 trial.

6

lanes was five seconds. Taking into account those five seconds

and the 40-mile-per-hour speed limit, Lee calculated a driver at

the intersection would need 300 feet of visibility to make a safe

left-hand turn. Because of the presence of “the Astro van,”

however, Colorado would have had to move up to the number

two lane on Azusa Canyon Road to have visibility of 300 feet:5

Colorado only had 150 feet of visibility due to the parked vehicle.

Lee’s reconstruction, which took into account factors such as the

placement of “those two vans” and the assumed trajectory of a

probable left turn, showed Colorado was first able to see

Rodriguez’s motorcycle in the number one lane at 2.3 seconds

before impact. Given the typical perception-reaction time of

about 1.5 seconds, Lee believed that provided only eight-tenths of

a second to make a maneuver. By then, based on Lee’s

reconstruction, Colorado was only 45 feet from Rodriguez’s

motorcycle, and “you can’t really avoid the incident at that

position.”

The jury was shown Lee’s presentation slides of his sight

line analysis. The slides recreated Colorado’s vantage point, with

visual depictions of the parked vans, at varying seconds before

impact. Lee’s slides, including those recreating Colorado’s

vantage point at 2.3 seconds and 4 seconds before the collision,

showed a line of four vehicles, the first two of which were vans,

parked on a road perpendicular to the one marked Nubia Street.

The vans were shown parked close to the intersection, with a

hydrant on the corner nearest to the parked vans. Red curbing

around the hydrant was depicted extending down the road

5 Lee believed it was reasonable for a motorist attempting

Colorado’s maneuver who could not see enough of the road to inch

forward toward Azusa Canyon Road.

7

toward the vehicles and next to at least the parked vans. Lee’s

analysis did not take into consideration the foliage because,

although there was testimony describing it as hanging over the

curb and he knew the location of the tree, there were no

photographs of the foliage taken at the time of the incident.

Accordingly, he did not have enough information to accurately

represent it.

b. Ruzak’s expert testimony

Ruzak opined that Baldwin Park failed to take reasonable

measures to mitigate the sight line problem for traffic traveling

from Nubia Street onto Azusa Canyon Road. Ruzak explained,

because Nubia was a minor residential street coming onto a

major, wide arterial, it necessitated a sight distance in concert

with Caltrans/AASHTO6 guidelines “if they so choose to use

those.”7 Ruzak explained the sight lines “that were available”

with the cars parked “along the area that would be approximate

to the little bit of red curb I think that was there” were, as best as

he could ascertain, much shorter than recommended in the

guidelines. Using Lee’s opinion that there were only 150 feet of

visibility, a stopping sight distance of 300 feet and a corner sight

distance of 440 feet, Ruzak believed the sight lines were “woefully

6 Although not explained by Ruzak, AASHTO is the

American Association of State Highway and Transportation

Officials. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099,

1104.)

7 Ruzak based his opinion in part on Caltrans’s Highway

Design Manual, which sets forth intersection design standards

relating to sight distance; but he reiterated the standards were

not mandatory.

8

inadequate” and “the potential for a crash with someone coming

out of Nubia would be expected.”

In Ruzak’s opinion Baldwin Park failed to have sufficient

red curb or no parking or no stopping signage to provide adequate

sight distance on Nubia Street. In contrast, Baldwin Park “did

this particular curb no parking situation” at the Sandstone

intersection located just to the north on Azusa Canyon Road.

Sandstone was a small residential street with less activity than

Nubia.

Ruzak also testified Baldwin Park’s employees should have

evaluated the sight lines “at the time that they were supposed to

do a study for a stop sign.”8 As part of his response to a separate

question and in discussing the red curb painting on Azusa

Canyon Road, particularly Baldwin Park’s curb return, Ruzak

stated, “If they went out there and only painted 20 feet, did they

not see that they didn’t have enough sufficient [sight] for

someone coming out of Nubia to make the turn? I have no

information either way on that.”9

In addition, acknowledging he did not take measurements,

Ruzak testified the placement of Nubia Street’s stop limit line

forced a stop at a location that provided a driver looking to the

left with limited sight. He said perhaps moving the limit line up

8 In the excerpt of his deposition played for the jury, Ruzak

provided no context for the “study for a stop sign” that he

testified should have been done.

9 Although Ruzak indicated the curb, or some of it, on Azusa

Canyon Road was painted red after the accident, Ruzak, as

discussed, acknowledged there had been at least a “little bit of

red curb” at the time of the accident. He explained his opinion

related to “that red curb” not having been “extend[ed].”

9

to the curb line, which was on Baldwin Park’s road, would “assist

a little bit” with the sight line. Ruzak further stated he did not

know whether the intersection was properly designed; he did not

have the design or as-built plans, did not know who designed it

and could not “say anything about that.”

3. Jury Instruction Discussions

After the parties finished presenting their evidence,

Rodriguez’s counsel renewed a prior objection to having Baldwin

Park on the verdict form. The trial court stated it would address

the verdict form after discussions on the jury instructions.

During those discussions the court asked whether it should give

CACI No. 406 (Apportionment of Responsibility).10 Rodriguez’s

counsel argued there was no evidence to establish liability for a

dangerous condition of public property or to overcome qualified

immunity for a dangerous intersection. Colorado’s counsel

contended there was evidence of fault by Baldwin Park,

Irwindale and Lai. Colorado’s attorney pointed out that Ruzak

testified Baldwin Park was responsible for the curb line where

the cars were obstructing the view and also testified both

10 The proposed jury instructions included CACI No. 406, as

well as CACI Nos. 1100-1104, 1120-1124. As proposed, CACI

No. 406 provided in part, “[[Name of defendant] claims that the

[negligence/fault] of [insert name(s) or description(s) of nonparty

tortfeasor(s)] [also] contributed to [name of plaintiff]’s harm.]

[¶] . . . [¶] If you find that the [negligence/fault] of more than one

person including [name of defendant] [and] [[name of plaintiff]/

[and] [name(s) or description(s) of nonparty tortfeasor(s)]] was a

substantial factor in causing [name of plaintiff]’s harm, you must

then decide how much responsibility each has by assigning

percentages of responsibility to each person listed on the verdict

form. The percentages must total 100 percent.”

10

Irwindale and Baldwin Park had responsibility for the

intersection. Although the court believed there was insufficient

evidence of Irwindale’s liability, it stated it would, at a minimum,

provide the instruction as to Lai and would consider whether

Baldwin Park should also be included.

The court later inquired whether, if it was going to instruct

the jury with CACI No. 406 for Baldwin Park, it would have to

give any other instruction. Colorado’s counsel responded the

court would have to give CACI No. 1100 (Dangerous Condition on

Public Property—Essential Factual Elements (Gov. Code,

§ 835)11). Discussing the elements of a claim for dangerous

condition of public property, the court stated it did not believe the

negligent or wrongful conduct of Baldwin Park’s employee

created a dangerous condition. Turning to notice of the

dangerous condition, the court initially asked, “What evidence is

there that they knew or had notice of it for a long time?”

Subsequently, however, the court clarified that “[t]he question is

with regards to that prong, that Baldwin Park had notice of the

dangerous condition for a . . . long enough time to have protected

against it,” and explained it did not see what evidence supported

that prong. After additional argument from counsel,12 the court

stated it was not in a position to include Baldwin Park on CACI

No. 406 but would provide an opportunity to persuade it

11 Statutory references are to this code unless otherwise

stated.

12 During oral argument Colorado’s counsel told the court the

intersection’s curb had been painted both before and after the

accident and that the exhibits showed the curb was painted

before the incident. Colorado’s counsel also earlier acknowledged

there was no evidence regarding the design of the intersection.

11

otherwise the next day. It also stated it was not, at that point,

going to provide the CACI No. 1100 series of jury instructions.

4. Colorado’s Bench Brief and Further Jury Instruction

Discussions

On September 16, 2021 Colorado filed a bench brief in

support of his position that Baldwin Park should be included on

the verdict form. Arguing there was sufficient evidence of

constructive notice to Baldwin Park to allow Colorado to

apportion fault to the city, he summarized the evidence at trial

that he asserted supported a CACI No. 1100 instruction.

Colorado pointed out both Lee and Ruzak testified there were

inadequate sight lines for the intersection. He also emphasized

Ruzak testified Baldwin Park could have improved the sight lines

by painting the curb red. Colorado argued “the condition at the

intersection, by inference, must have existed for at least months

prior to the accident” and a refusal to instruct the jury with CACI

No. 1100 would be to effectively grant a motion for nonsuit as to

his affirmative defense of Baldwin Park’s comparative fault.

That same day the court continued its discussions about

jury instructions with Rodriguez’s and Colorado’s counsel. The

court said it had reviewed Colorado’s bench brief and found

sufficient evidence to show the existence of a dangerous

condition, but no evidence that the notice component had been

satisfied, explaining, “There isn’t any specific time frame that

you’ve established that would provide the requisite notice for

Baldwin Park.” The court also stated, “[T]here isn’t anything in

this record to suggest that prior to the accident there was some

inference or direct knowledge by the City of Baldwin Park that it

knew or had a dangerous condition on its hand.” When

Colorado’s counsel replied, “The test isn’t whether it knew. The

12

test is whether it knew or should have known,” the court

responded, “Right. Inference. That’s what I’m saying. Either

way, you certainly don’t have the direct. But even in the

inferring, I just don’t see it.” After further argument of counsel,

the court stated its intent to adopt its tentative ruling and not to

edit the verdict form to add Baldwin Park or give the CACI

No. 1100 series of jury instructions. It again explained, “My only

concern and where I’m kind of focusing my ruling on is . . . with

regards to this notice provision. There’s nothing in this

particular record to suggest that . . . an obvious danger existed

for an adequate period of time before the accident to have

permitted Baldwin Park in their exercise of due care to discover

and remedy whatever the situation was. In this case, the [sight]

lines.”

5. The Verdict and the Judgment

On September 17, 2021 the jury returned its verdict,

finding Colorado negligent and neither Rodriguez nor Lai

negligent. It determined Rodriguez’s damages totaled $865,000,

of which $750,000 was for noneconomic loss. On January 6, 2022

the court entered a judgment in the amount of $816,000 against

Colorado and in favor of Rodriguez.13

13 The parties do not explain the apparent discrepancy

between the jury’s verdict and the court’s judgment. Rodriguez

neither appealed the court’s judgment nor argued it should be

corrected.

13

DISCUSSION

1. The Court Did Not Err in Rejecting the CACI No. 1100

Series of Jury Instructions

a. Governing law and standard of review

Section 835 provides, unless exempted 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 Section 835.2 a sufficient

time prior to the injury to have taken measures to protect against

the dangerous condition.”

For purposes of section 835, subdivision (b), a public entity

had constructive notice of a dangerous condition “only if the

plaintiff establishes that the condition had existed for such a

period of time and was of such an obvious nature that the public

entity, in the exercise of due care, should have discovered the

condition and its dangerous character.” (§ 835.2, subd. (b);

see Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 842

(Carson) [“‘[c]onstructive notice may be imputed if it can be shown

that an obvious danger existed for an adequate period of time

before the accident to have permitted the [public entity], in the

exercise of due care, to discover and remedy the situation’”].)

Subdivision (b) of section 835.2 continues, in part: “On the issue

of due care, admissible evidence includes but is not limited to

14

evidence as to: [¶] (1) Whether the existence of the condition and

its dangerous character would have been discovered by an

inspection system that was reasonably adequate . . . to inform the

public entity whether the property was safe.”

The Legislature has defined “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.” (§ 830,

subd. (a).) “The fact that action was taken after an injury

occurred to protect against a condition of public property is not

evidence that the public property was in a dangerous condition at

the time of the injury.” (§ 830.5.)

A party in a civil case is, upon request, entitled to correct

jury instructions on every theory of the case supported by

substantial evidence. (Soule v. General Motors Corp. (1994)

8 Cal.4th 548, 572; Olive v. General Nutrition Centers, Inc. (2018)

30 Cal.App.5th 804, 813.) We review the record de novo to

determine whether any substantial evidence supported giving a

refused jury instruction. (Evans v. Hood Corp. (2016)

5 Cal.App.5th 1022, 1045; Davis v. Honeywell Internat. Inc. (2016)

245 Cal.App.4th 477, 495.) “A judgment may not be reversed for

instructional error in a civil case ‘unless, after an examination of

the entire cause, including the evidence, the court shall be of the

opinion that the error complained of has resulted in a miscarriage

of justice.’” (Soule, at p. 580.)

15

b. There was insufficient evidence the cities had

constructive notice of a dangerous condition of public

property14

Colorado contends the trial court committed reversible

error by refusing to give the CACI No. 1100 series of jury

instructions on the dangerous condition of public property

doctrine, which is based on section 835 and related statutory

provisions, because substantial evidence supported that theory of

the cities’ liability. Citing Carson, supra, 36 Cal.3d at page 842,

he also contends the trial court, misconstruing what constituted

constructive notice for purposes of the doctrine, erred in requiring

a public entity to have known or be on notice of the dangerous

condition “for a long time” rather than that “‘an obvious danger

existed for an adequate period of time before the accident to have

permitted the [public entity], in the exercise of due care, to

discover and remedy the situation.’”

Although the trial court initially asked the parties’ counsel

what evidence showed the cities knew or had notice of the

dangerous condition for a long time, it is clear the court

ultimately based its ruling on the standard for constructive notice

articulated in Carson, supra, 36 Cal.3d 830. In any event,

Colorado fails to show the court erred in rejecting his request for

the CACI No. 1100 series of jury instructions because he fails to

show there was substantial evidence of the cities’ constructive

notice to establish liability for a dangerous condition of public

14 Colorado does not argue that there was liability under

subdivision (a) of section 835 (public entity employee’s negligent

or wrongful act or omission that created the dangerous condition),

nor does he argue the cities had actual notice of a dangerous

condition.

16

property. In particular, there was insufficient evidence of the

duration of the dangerous condition—the inadequate sight lines

at the intersection of Nubia Street and Azusa Canyon Road due

primarily to the large van(s) parked close to the intersection

corner—prior to the accident to allow a jury to find the cities

could have, with due care, discovered and remedied the

dangerous situation. For example, no evidence established how

long, if ever, before the accident Baldwin Park or Irwindale had

allowed legal parking where the van(s) obstructing the sight lines

were located; nor was there any evidence, if the van(s) were

parked illegally, that either Baldwin Park or Irwindale should

have known of illegal parking in a manner creating inadequate

sight lines at the intersection. (See generally Strongman v. Kern

County (1967) 255 Cal.App.2d 308 [affirming judgment of nonsuit

that was granted on the ground plaintiff failed to establish the

county had notice of the dangerous condition, a missing plank in

a wooden ramp, for any period of time before the accident]; see

also, e.g., Kotronakis v. City & County of San Francisco (1961)

192 Cal.App.2d 624, 629-630 [reversing verdict and judgment

against the City and County of San Francisco because there was

insufficient evidence the city had constructive notice of the

presence of vomit on which plaintiff slipped; “there is a total lack

of evidence that the particular vomit on which respondent slipped

had been there longer than over night”]; Cheyney v. City of Los

Angeles (1953) 119 Cal.App.2d 75, 77 [affirming order granting a

motion for nonsuit in part because there was no evidence as to

how long the alleged dangerous or defective condition of a

stairway at a city-supervised beach had existed].)

Colorado argues there was substantial evidence from which

a jury could reasonably infer constructive notice, pointing to

17

Ruzak’s testimony that Baldwin Park painted a red “no parking”

curb on Azusa Canyon Road where it intersects with Sandstone,

a less busy street than, and located immediately to the north of,

Nubia. He contends the jury could reasonably infer from that

testimony the cities had been patrolling the area and thus were

aware of the traffic patterns and sight lines at the intersections

along that stretch of Azusa Canyon Road. In support Colorado

quotes subdivision (b)(1) of section 835.2, which provides for the

admissibility of evidence as to “[w]hether the existence of the

condition and its dangerous character would have been

discovered by an inspection system.” Ruzak’s testimony,

Colorado asserts, showed the cities could have discovered and

remedied the dangerous condition had they performed a

reasonable inspection of the Nubia intersection.

Contrary to Colorado’s argument, however, section 835.2,

subdivision (b)(1), provides for the admissibility of evidence

regarding a reasonably adequate inspection system “[o]n the

issue of due care.” That statutory provision does not fill in the

evidentiary gap as to the length of time the dangerous condition

existed. Colorado fails to identify sufficient evidence in the

record that speaks to that essential element of a claim of public

entity liability. (See, e.g., State of California v. Superior Court of

San Mateo County (1968) 263 Cal.App.2d 396, 400 [“In the instant

case, it can be validly argued that there was a triable issue on the

question of inspection, but in determining whether there is

constructive notice, the method of inspection has been held to be

secondary. The primary and indispensable element of

constructive notice is a showing that the obvious condition existed

a sufficient period of time before the accident”]; cf. CACI No. 1011

[“If an inspection was not made within a reasonable time before

18

the accident, this may show that the condition existed long

enough so that [a store/[a/an] [insert other commercial enterprise]]

owner using reasonable care would have discovered it”].)15 As for

Ruzak’s testimony that someone had painted a red curb along the

stretch of road where the accident occurred at some time after the

accident, the testimony not only fails to show how long the

dangerous condition existed before the accident, but also does not

constitute evidence the public property was in a dangerous

condition at the time of Rodriguez’s injury. (See § 830.5.)

Colorado also argues Lee’s sight line analysis and visual

presentation slides “demonstrate the obvious danger,” and that

the dangerous condition of the intersection was also readily

apparent to other witnesses who testified about the intersection.

Colorado, however, must not only establish the dangerous

condition was of “an obvious nature” under section 835.2,

subdivision (b), but also how long the dangerous condition existed

before the accident. As discussed, he failed to do so. (See Heskel

v. City of San Diego (2014) 227 Cal.App.4th 313, 320 [“A claim for

constructive notice has two threshold elements. [Citation.] A

plaintiff must establish that the dangerous condition has existed

for a sufficient period of time and that the dangerous condition

15 Although Ruzak explained his belief Baldwin Park’s

employees should have evaluated the sight lines at the time they

were supposed to do a study for a stop sign, he did not indicate

when a study was, or should have been, performed. He also did

not state when the curb on Azusa Canyon Road at the Sandstone

intersection was painted red. Moreover, as Rodriguez points out,

and Colorado does not dispute, there was no evidence of prior

accidents at the Nubia Street and Azusa Canyon Road

intersection or evidence of complaints made to the cities of a

dangerous condition at that intersection prior to the accident.

19

was obvious”]; State of California v. Superior Court of San Mateo

County, supra, 263 Cal.App.2d at p. 401 [“‘[w]hile both the

notoriety of the condition [citation] and the length of time it must

have existed [citation] are normally questions of fact which are to

be resolved by the jury, if the evidence as to either of these

elements is insufficient as a matter of law the jury’s verdict

cannot stand,’” italics omitted].)

The cases on which Colorado relies do not compel a contrary

conclusion. In each of those cases, there was the evidence that

was missing here—evidence of how long the dangerous condition

existed, which thus permitted a finding of constructive notice.

(See Carson, supra, 36 Cal.3d at pp. 841, 843-844 [City had

constructive knowledge of an intersection’s allegedly dangerous

condition created by a sign obstructing the view; the sign, which

was located next to the intersection for seven months prior to the

accident, “was visible from a public roadway for many months”];

Erfurt v. State of California (1983) 141 Cal.App.3d 837, 844

[“While the particular dangerous condition in this case existed

only 20 some days of the year, it had been in existence for over

10 years, since the construction of the highway in 1966. Under

such circumstances the jury could reasonably find constructive

notice of the dangerous condition”]; Straughter v State of

California (1976) 89 Cal.App.3d 102, 104-110 [icy conditions on

highway’s eastbound lanes on mountain pass causing a series of

multivehicle collisions; the State was required to engage in

continuous inspection, temperature monitoring and application of

abrasives whenever icing appeared imminent, as the evidence

showed was the case; notwithstanding claims by the State’s

witnesses of no ice in the eastbound, as opposed to westbound,

lanes before the 7 a.m. accident, the jury could rely on expert

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testimony concerning the probability of gradual ice formation on

the pass’s eastern face shortly after 3 a.m., before the accident];

Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 91-

92 [in a case where a dangerous condition was created by the

absence of a speed zone for a new roadway curve with a design

speed of 45 miles per hour that was designed, constructed and

maintained by the City of Thousand Oaks, it was “undisputed

that the new roadway existed without a speed zone from the time

it was first opened to traffic until the accident occurred

approximately six weeks later”].)

To reiterate, here there was insufficient evidence how long

the inadequate sight lines at the Nubia Street and Azusa Canyon

Road intersection had existed prior to the accident. The trial

court did not err in refusing to instruct on Colorado’s theory of

proportionate liability against the cities.

2. The Court Did Not Err in Rejecting Colorado’s Request

To List the Cities on the Special Verdict Form16

Civil Code section 1431.2, subdivision (a), provides the

liability of a defendant for noneconomic damages in a personal

16 “A special verdict is ‘fatally defective’ if it does not allow the

jury to resolve every controverted issue.” (Saxena v. Goffney

(2008) 159 Cal.App.4th 316, 325; accord, Trejo v. Johnson &

Johnson (2017) 13 Cal.App.5th 110, 136; Taylor v. Nabors

Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1240.) “‘We

analyze the special verdict form de novo’” (Rodriguez v. Parivar,

Inc. (2022) 83 Cal.App.5th 739, 751; see also McCoy v. Gustafson

(2009) 180 Cal.App.4th 56, 91 [“a special verdict’s correctness is

analyzed as a matter of law and therefore subject to de novo

review”]) and review the adequacy of the special verdict form for

prejudicial error (Austin B. v. Escondido Union School Dist.

(2007) 149 Cal.App.4th 860, 872).

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injury action “shall be several only and shall not be joint,” with

each defendant “liable only for the amount of non-economic

damages allocated to that defendant in direct proportion to that

defendant’s percentage of fault” and “a separate judgment . . .

rendered against that defendant for that amount.” As Colorado

points out, the Supreme Court in DaFonte v. Up-Right, Inc.

(1992) 2 Cal.4th 593, 603 explained “[t]he only reasonable

construction of [Civil Code] section 1431.2 is that a ‘defendant[’s]’

liability for noneconomic damages cannot exceed his or her

proportionate share of fault as compared with all fault

responsible for the plaintiff’s injuries, not merely that of

‘defendant[s]’ present in the lawsuit.” Similarly the court of

appeal in Vollaro v. Lispi (2014) 224 Cal.App.4th 93 explained

“an injured plaintiff bears the entire risk of loss for any unpaid

noneconomic damages attributable to a tortfeasor who has not

been sued or is statutorily immune.” (Id. at p. 100.)

“‘“Nonparties” include the universe of tortfeasors who are not

present at trial, including defendants who settled before trial and

nonjoined alleged tortfeasors.’” (Id. at p. 100, fn. 5.)

Emphasizing that the jury awarded $750,000 in

noneconomic damages solely against him, Colorado argues the

trial court compounded its error in failing to instruct on Baldwin

Park’s and Irwindale’s responsibility for the dangerous condition

of the Nubia Street-Azusa Canyon Road intersection by refusing

to add the cities to the special verdict form, which listed only

Rodriguez, Colorado and Lai for purposes of the jury’s

comparative fault findings. But “in order to apportion liability

for noneconomic damages there must be evidence of fault, not

just causation.” (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 368;

see, e.g., Blevin v. Coastal Surgical Institute (2015)

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232 Cal.App.4th 1321, 1329 [“‘[u]nless there is substantial

evidence that an individual is at fault . . . , there can be no

apportionment of damages to that individual’”; “[t]he burden is on

the defendant to prove that a nonparty tortfeasor was at fault”].)

As discussed, there was insufficient evidence of constructive

notice for a jury to have found the cities liable for a dangerous

condition of public property. Colorado does not on appeal explain

how a jury could have found the cities at fault on any other basis.

It was not error to omit the cities from the special verdict form.

DISPOSITION

The judgment is affirmed. Rodriguez is to recover his costs

on appeal.

PERLUSS, P. J.

We concur:

FEUER, J.

ESCALANTE, J.



Judge of the Los Angeles Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.

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