Corona v. Dept. of Transportation CA4/1 ( 2014 )

Filed 5/27/14 Corona v. Dept. of Transportation CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FLORENCIO CORONA, D065300
Plaintiff and Appellant,
v. (Super. Ct. No. CIVRS900287)
DEPARTMENT OF TRANSPORTATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Bernardino County,
David A. Williams, Judge. Affirmed.
Law Offices of Martin L. Stanley, Martin L. Stanley and Jeffrey R. Lamb for
Plaintiff and Appellant.
Ronald W. Beals, Linda Cohen Harrel, Jill Siciliano-Okoye, Alexandar D.
DeVorkin, Carol Quan, William H. Rittenburg, Jerald M. Montoya, and Helen Lemmon
Alarcon for Defendant and Respondent.
In this action arising from a fatal motor vehicle collision, Florencio Corona, Sr.,
his wife and daughter (collectively, plaintiffs), sued the State of California Department of
Transportation (the State) generally alleging a dangerous condition of public property
(confusing traffic signals) was a substantial factor causing the accident that killed
Corona's ex-wife, Jennifer Corona, and 14-year-old son, Florencio Corona, Jr. The trial
court granted summary judgment in the State's favor. Corona appeals, contending (1) the
trial court abused its discretion in sustaining the State's objections to his evidence, (2) he
presented evidence raising a triable issue of fact as to whether the State created a
dangerous condition, and (3) statutory design immunity did not apply. We conclude the
trial court did not abuse its discretion in ruling on the State's evidentiary objections and
Corona did not meet his burden of establishing a triable issue of material fact as to
whether the State created a dangerous condition. Accordingly, we affirm and need not
consider the issue of design immunity.
FACTUAL AND PROCEDURAL BACKGROUND
On a morning in January 2008, Jennifer drove westbound on G Street at its
intersection with Euclid Avenue (State Route 83), in Ontario, California. She entered the
intersection against a red light and was struck by a vehicle traveling northbound on
Euclid Avenue. Jennifer and her passenger, Florencio Corona, Jr., suffered fatal injuries.
According to the traffic collision report, the weather was clear and the roadway
was dry with no unusual conditions. A witness saw the traffic signal on the west side of
the street turn green while the light for Jennifer's position remained red. The signal on
the west side of the street "is slightly canted towards a southeastern direction," "is used to
signal the traffic turning from northbound Euclid Ave[nue] to west bound G Street" and
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could be seen by Jennifer. Jennifer accelerated and ran her red light. The witness
assumed Jennifer thought she had a green light.
Plaintiffs sued the State, the City of Ontario, and the County of San Bernardino for
the wrongful deaths of Jennifer and Florencio Corona, Jr. The State moved for summary
judgment, contending plaintiffs lacked standing to bring a wrongful death lawsuit for the
death of Jennifer; Corona's daughter and current wife (Florencio Corona, Jr.'s half sister
and stepmother, respectively) lacked standing to bring a wrongful death lawsuit for the
death of Florencio Corona, Jr.; plaintiffs could not establish the existence of a dangerous
condition; and plaintiffs' action against the State was barred by statutory design immunity
afforded by Government Code section 830.6. (Undesignated statutory references are to
this code.)
According to the State's undisputed evidence, the traffic signal system in place on
the date of the accident for the intersection of G Street and Euclid Avenue was installed
in October 1994. Between 1999 and 2008, more than 12 million vehicles entered the
intersection traveling westbound on G Street. During that time, there were no accidents
involving westbound signal-related driver confusion.
The State also presented evidence explaining the traffic signal location, visibility
and timing plan at the subject intersection. According to Matthew Manjarrez, a
registered traffic engineer, the signal system conformed to the standards and
specifications set forth in California's Manual on Uniform Traffic Control Devices.
Manjarrez explained that for westbound vehicles on G Street, there are three traffic signal
heads with red, yellow and green circular indications which control traffic that is
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approaching, stopped at, or entering the subject intersection. Once vehicles enter the
intersection, they are controlled by two other traffic signal heads (overlap signals). As
part of the traffic signal timing plan, the overlap signals periodically show a green
indication while the signals for stopped, approaching, and entering westbound traffic
indicate red. This allows for vehicles already within the intersection to clear after the
other signals have turned red.
The signal faces on the overlap signal heads are partially visible to drivers stopped
at the intersection; however, they are shielded to the extent possible by signal louvers
which are devices mounted inside a signal visor to limit visibility of a signal indication to
a certain distance from the stop line. As a result of the louvers, the overlap signal
indications are partially occluded to drivers stopped at the intersection and their attention
is directed to the other signals which are intended for their use.
In opposition to the State's motion, Corona submitted the declaration of Robert W.
Crommelin, a professional traffic operations engineer. Crommelin explained that the
intersection of G Street and Euclid Avenue has a significant width in an east-west
direction across Euclid Avenue. Thus, "[t]he traffic signal phasing is unusual in that
there is a split of the phase regarding east and west traffic to minimize stopping vehicles
on G Street in the median of Euclid Avenue. The signals have been designed so that
traffic will not enter the intersection on G Street unless it can clear the other direction of
travel as it crosses the unusually wide intersection." According to Crommelin, the special
phasing did not utilize signal heads which could be programmed so drivers did not see
conflicting signals. Crommelin attached a picture to his declaration depicting "the
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situation which can exist where a red signal is being given to the near location, yet at the
far location, a green signal is given." Crommelin opined that conflicting traffic signals
caused the subject accident and that the picture revealed an unsafe and dangerous
condition. He stated that if the traffic signals were properly installed and inspected, the
accident would not likely have occurred. Based on the eyewitness statement in the police
report and Crommelin's declaration, it appears Corona's theory of the case was that
Jennifer entered the intersection against a red light due to confusing traffic signals.
The State objected to the photograph, contending it was misleading because it was
taken at a severe angle and did not represent the driver's view on westbound G Street.
Further, the photograph did not depict the signals involved in the accident as Crommelin
stated the photograph showed a green signal at the northeast corner of the intersection
whereas he understood the signal that caused Jennifer's error was at the southwest corner.
Lastly, the State argued there was no foundation to establish when and who took the
photograph and its viewpoint and direction. The State also objected to significant
portions of Crommelin's declaration, including statements based on the photograph and
his opinions regarding the cause of the accident.
At the hearing on the summary judgment motion and evidentiary objections, the
trial court stated that it was sustaining the State's objections to the photograph and
Crommelin's statements which relied on that photograph. The trial court overruled the
State's objections concerning Crommelin's statements about what caused the accident and
whether there were conflicting traffic signals at the subject intersection. However, the
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court took the matter under submission and ultimately sustained the objections pertaining
to Crommelin's opinions on the cause of the accident.
The court granted the State summary judgment against Corona, finding the State
had design immunity and Corona failed to establish the State had notice of a dangerous
condition. The court also granted the summary judgment against all plaintiffs as to the
claim for the wrongful death of Jennifer and against Corona's daughter and wife as to the
claim for the wrongful death of Florencio Corona, Jr. based on lack of standing.
DISCUSSION
I. Scope of Appeal
The notice of appeal in this case identifies Corona as the sole appellant; however,
his brief indicates that his current wife is also an appellant. There is no other indication
that Corona's wife or daughter is an appellant in this action.
Further, Corona's appellate brief does not raise any issues concerning the court's
rulings that plaintiffs lacked standing to bring a claim for the wrongful death of Jennifer
and that Corona's daughter and wife lacked standing with respect to their claim for the
wrongful death of Florencio Corona, Jr. "Issues do not have a life of their own: if they
are not raised . . . , we consider the issues waived." (Jones v. Superior Court (1994) 26
Cal.App.4th 92, 99.)
Based on the foregoing, any issues concerning plaintiffs' claim for the wrongful
death of Jennifer are waived. Similarly, Corona's daughter and wife waived their right to
appeal the court's judgment as to their claim for the wrongful death of Florencio Corona,
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Jr. Accordingly, we limit our review to the summary judgment against Corona on his
wrongful death claim concerning Florencio Corona, Jr.
II. Evidentiary Objections
Corona argues the trial court abused its discretion in sustaining the State's
objections to portions of Crommelin's declaration. Specifically, he contends that after the
trial court took the matter under submission, it improperly reversed the decision it had
orally announced at the hearing as the court did not provide its rationale for sustaining
each objection and he was deprived an opportunity to be heard.
" '[A] judge's comments in oral argument may never be used to impeach the final
order, however valuable to illustrate the court's theory they might be under some
circumstances.' [Citation.] Similarly, a trial court's tentative ruling is not binding on the
court; the court's final order supersedes the tentative ruling. [Citations.] . . . Nor is an
oral [or tentative] ruling necessarily the unequivocal decision of the court. A court may
change its ruling until such time as the ruling is reduced to writing and becomes the
[final] order of the court." (Silverado Modjeska Recreation & Park Dist. v. County of
Orange (2011) 197 Cal.App.4th 282, 300 (Silverado).)
Here, the court initially stated that it was sustaining the State's objections to the
photograph and Crommelin's statements which relied on that photograph but overruling
objections to his statements concerning the cause of the accident and existence of
conflicting traffic signals. After it took the matter under submission, the court issued a
written order which reversed its tentative decision concerning the State's objections to
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Crommelin's statements about the cause of the accident and existence of conflicting
traffic signals. Accordingly, the trial court sustained seven of the State's eight objections.
Based on our review of the record, the court held an extensive hearing on the
matter, giving each party ample opportunity to submit arguments. After hearing from the
parties, the court stated that "[the decision] was really close when [it] gave [its] tentative"
and it would take the matter under submission. Whatever the court's initial impressions
may have been, it was not bound by its tentative ruling. (Silverado, supra, 197
Cal.App.4th at p. 300.) Further, the court did not deprive Corona an opportunity to be
heard on the evidentiary matters as it held an extensive hearing in which it invited
arguments from the parties.
On appeal, Corona does not make substantive arguments regarding the trial court's
evidentiary rulings. He merely makes a blanket statement that he "disputes that any of
the objections set forth by [the State] in the underlying case were sustainable, and this
Court should consider all of the substantial evidence presented by [him] in revisiting the
motion for summary judgment." "Where a point is merely asserted by [appellant]
without any [substantive] argument of or authority for its proposition, it is deemed to be
without foundation and requires no discussion." (People v. Ham (1970) 7 Cal.App.3d
768, 783.)
III. Dangerous Condition
Corona contends he presented evidence raising a triable issue of fact as to whether
the State created a dangerous condition. We disagree.
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A. Standard of Review and General Legal Principles
A trial court must grant a motion for summary judgment if the moving party
establishes there is no triable issue as to any material fact and the moving party is entitled
to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) On appeal from an
order granting summary judgment, we independently determine whether triable issues of
material fact exist. In making this determination, we view the evidence in a light
favorable to the plaintiff. We liberally construe the plaintiff's evidentiary submission,
strictly scrutinize the defendant's evidentiary submission, and resolve any evidentiary
doubts or ambiguities in the plaintiff's favor. (Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 768-769; Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 565.)
A public entity is not liable for an injury except as provided by statute. (§ 815,
subd. (a).) Section 835 provides the sole statutory basis for a dangerous condition of
public property claim. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829;
Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438 (Brenner).) The essential
elements of a claim under section 835 are (1) the public entity's property was in a
dangerous condition at the time of the injury, (2) the injury was proximately caused by
the dangerous condition, (3) the dangerous condition created a reasonably foreseeable
risk of the kind of injury that occurred, and (4) the dangerous condition was created by
the negligent or wrongful conduct of an employee of the public entity acting within the
scope of employment, or the public entity had sufficient advance notice of the dangerous
condition to protect against it. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th
1121, 1126, 1129-1130; Brenner, supra, at p. 439.)
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" 'Dangerous condition' means 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).) If a party shows the property is safe when used
with due care 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 the
statute. (Brenner, supra, 113 Cal.App.4th at p. 439.)
Whether a given set of facts and circumstances creates a dangerous condition is
usually a question of fact and may be resolved as a question of law only if reasonable
minds can come to but one conclusion. (§ 830.2; Peterson v. San Francisco Community
College Dist. (1984) 36 Cal.3d 799, 810 (Peterson); Chowdhury v. City of Los Angeles
(1995) 38 Cal.App.4th 1187, 1194.) "Section 830.2 . . . sets forth the criteria for a court
to conclude as a matter of law that a condition is not dangerous within the meaning of
section 830: 'A condition is not a dangerous condition within the meaning of this chapter
if the trial or appellate court, viewing the evidence most favorably to the plaintiff,
determines as a matter of law that the risk created by the condition was of such a minor,
trivial or insignificant nature in view of the surrounding circumstances that no reasonable
person would conclude that the condition created a substantial risk of injury when such
property or adjacent property was used with due care in a manner in which it was
reasonably foreseeable that it would be used.' " (Peterson, supra, at p. 810, fn. 9.) It is
for the court to determine whether, as a matter of law, no reasonable person could
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conclude a given defect or set of circumstances is dangerous. (Davis v. City of Pasadena
(1996) 42 Cal.App.4th 701, 704.)
B. Analysis
Corona does not expressly challenge the State's threshold summary judgment
showing on the issue of existence of a dangerous condition at the subject intersection.
Rather, he contends only that his evidence raised a triable issue of fact regarding whether
a dangerous condition existed.
In this case, the State presented evidence to meet its threshold burden to show the
traffic signals at the subject intersection did not constitute a dangerous condition within
the meaning of section 830. Manjarrez's declaration established that westbound vehicles
on G Street approaching the intersection were "given a clear and unmistakable
identification of their right-of-way assignment by the three . . . traffic signal heads."
Further, the signal heads on the overlap signals were shielded, to the extent practical, by
louvers, which thereby directed the attention of drivers stopped at the intersection to the
appropriate signal heads. The State regularly performed maintenance inspections on the
signals. According to Manjarrez, "[n]othing at the subject intersection would prevent due
care drivers from safely traveling through the intersection."
Moreover, the State's records indicate no prior similar accidents occurred at the
subject intersection. The absence of prior similar accidents supports a conclusion no
dangerous condition exists. (See Sambrano v. City of San Diego (2001) 94 Cal.App.4th
225, 243; Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483; McKray v.
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State of California (1977) 74 Cal.App.3d 59, 62; Fielder v. City of Glendale (1977) 71
Cal.App.3d 719, 733.)
Based on the foregoing, we turn to the question of whether Corona met his
responding summary judgment burden. On the issue of whether there was a dangerous
condition, Corona relied on Crommelin's declaration. As we previously noted, the trial
court sustained objections to significant portions of that declaration and Corona did not
show an abuse of discretion on appeal (ante, part II). "[F]or purposes of reviewing a
motion for summary judgment, we do not consider evidence 'to which objections have
been made and sustained.' " (Alexander v. Codemasters Group Limited (2002) 104
Cal.App.4th 129, 139-140.)
Considering the admitted portions of Crommelin's declaration, we conclude
Corona did not meet his burden on summary judgment "to show that a triable issue of one
or more material facts exists as to [his] cause of action or a defense thereto." (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Specifically, Corona did not show a
negligent or wrongful act or omission of a State employee created the dangerous
condition or that the State had actual or constructive notice of the dangerous condition.
(§ 835.) Although Crommelin indicates that the signal phasing at the subject intersection
"does not utilize signal heads which can be programmed so drivers can see a given signal
but not make it possible to see a conflicting signal," he does not address the State's
evidence that the signal faces were shielded, to the extent practical, by signal louvers
which partially occluded the overlap signal indications to drivers stopped at the
intersection. Further, Crommelin's declaration does not establish a negligent or wrongful
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act by a State employee created a dangerous condition with a risk of significant injury if
not used with due care in connection with the relevant signals.
Crommelin's declaration also does not show that the State had actual or
constructive notice of the alleged dangerous condition. Crommelin acknowledges the
lack of "a significant crash history at th[e] intersection," yet he fails to address any other
means by which the State had notice of a dangerous condition. Thus, Crommelin's
declaration fails to create a triable issue on this point.
Based on the foregoing, we conclude Corona did not meet his burden of
establishing triable issues of material fact on the existence of a dangerous condition.
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
MCINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
MCDONALD, J.
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