Duran v. County of Los Angeles CA2/1 ( 2023 )

Filed 5/9/23 Duran v. County of Los Angeles CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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 ONE
OSCAR DURAN et al., B311324
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC710818)
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
Appeal from judgment of the Superior Court of Los Angeles
County, Daniel M. Crowley, Judge. Affirmed.
Law Offices of Andy Basseri and Andy Basseri for Plaintiffs
and Appellants.
Collins + Collins, Tomas A. Guterres, David C. Moore and
Adam A. Ainslie for Defendant and Respondent.
______________________________
In May 2017, a car struck and killed Christian Duran as
he attempted to cross 61st Street in Los Angeles. Appellants
Oscar Duran, Angela Duran, Jasmine Duran, and Matthew Duran
(collectively, the Duran appellants) sued the County of Los Angeles
(the County) under section 835,1 claiming it created a dangerous
condition at the accident site by removing a preexisting crosswalk,
leaving behind faded crosswalk markings, neglecting to install
speed humps, and failing to enforce parking restrictions. The trial
court granted summary judgment to the County, determining as a
matter of law that no dangerous condition existed at the accident
location. The Duran appellants ask us to reverse the trial court,
urging that disputed issues of material fact preclude summary
judgment of their section 835 claim.
Although we sympathize with the tragedy of the accident, we
conclude that the trial court properly granted summary judgment to
the County. The statutory immunities afforded the County under
sections 830.6 and 818.2 bar each of the Duran appellants’ theories
of liability, with the exception of their allegations concerning the
faded crosswalk markings. As to their faded crosswalk theory, the
Duran appellants cannot establish the requisite causation. We
therefore affirm.
1 Unless otherwise specified, all subsequent references are to
the Government Code.
2
FACTUAL SUMMARY AND PROCEDURAL HISTORY2
A. The Accident
On May 12, 2017, at approximately 6:10 p.m., a car struck
and fatally injured 10-year-old Christian Duran while he was
crossing 61st Street between Hooper Avenue and Central Avenue
in Los Angeles, California. This portion of 61st Street is a flat,
straight, east-west roadway consisting of one lane in each direction.
It borders a continuous two-block stretch that contains the Diego
Rivera Learning Complex (the complex). “School Zone” and speed
limit signs—restricting vehicular travel to 25 miles per hour3 —
bookend the east and west entrances of the street.
Prior to construction of the complex, a roadway called Naomi
Avenue formed an intersection with 61st Street. A pedestrian
crosswalk marked the intersection. In connection with construction
of the complex, the County converted the portion of Naomi Avenue
that then intersected 61st Street into a driveway and purportedly
removed the pedestrian crosswalk.
The Duran appellants contend that, at the time of the
accident, Christian was crossing 61st Street at the site of the former
crosswalk, where the County allegedly left behind faded crosswalk
markings. The Duran appellants allege further that cars parked
illegally on 61st Street interfered with Christian’s and the driver’s
ability to see one another.
The County, in contrast, contends that the evidence
demonstrates that the crosswalk markings had been completely
removed, that Christian “knew there wasn’t a crosswalk at
2We summarize here only the facts and procedural history
relevant to our resolution of this appeal.
3The Duran appellants do not contend that the driver
involved in the accident was speeding.
3
61st Street,” and that the accident occurred because Christian ran
abruptly into the street, without first checking for oncoming traffic.4
B. Design and Construction of the Complex
In 2008, the City of Los Angeles ceded Naomi Avenue to the
Los Angeles Unified School District (LAUSD) for the development
of LAUSD South Region High School No. 2, now known as the Diego
Rivera Learning Complex. In connection with the development and
construction of the complex, LAUSD submitted to the County two
sets of street improvement plans—the phase 1 plan and the phase 2
plan. County engineers approved the phase 1 and phase 2 plans
in October 2009 and February 2010, respectively. In May 2010,
County engineers also approved a “signing and striping” plan
governing the project’s signage and pavement markings.
As relevant here, the plans contemplated the conversion
of the portion of Naomi Avenue that then abutted 61st Street into
a gated driveway for the complex. In addition, the signing and
striping plan called for the removal of the pedestrian crosswalk
where Naomi Avenue and 61st Street then met.
Following completion of construction, the County conducted
a field inspection to ensure the finished project conformed to the
plans. On April 4, 2013, the County field-approved the signing
and striping for 61st Street, and on May 9, 2017, the County issued
a “notice of field acceptance” for the entire completed project.
(Boldface and capitalization omitted.) The notice provides, in
relevant part: “Final inspection of the above captioned street
improvements has been made. The work has been completed in
accordance with the plans and specifications.”
4None of the Duran appellants witnessed the accident,
although they arrived on the scene shortly after it occurred.
4
C. Trial Court Proceedings
The accident giving rise to this appeal took place on May 12,
2017, three days after the County issued the field acceptance notice
for the completed project. On June 20, 2018, the Duran appellants
filed a complaint in the superior court against the County, as well
as the driver and owner of the vehicle involved in the accident,5
asserting among other claims against the County that “[t]he
dangerous conditions existing at the subject location were a cause
of Christian Duran’s injuries.”
On May 29, 2020, the County filed a motion for summary
judgment or, in the alternative, summary adjudication. As relevant
to this appeal, the County’s motion argued that (1) no dangerous
condition existed at the accident location at the time of the incident,
(2) section 818.2 immunized the County from any liability for failing
to enforce traffic laws on 61st Street, (3) the “design immunity”
conferred by section 830.6 barred the Duran appellants’ claims,
and (4) Christian knew the County had removed the crosswalk on
61st Street, and he caused the accident by darting into the street
without checking for oncoming traffic. Along with its motion, the
County submitted numerous declarations and a separate statement
of undisputed material facts.
The Duran appellants opposed the motion.6 In support of
their opposition, they submitted several declarations and a report
from proposed engineering expert Dale Dunlap. Dunlap opined that
5 Neither the driver nor the owner of the vehicle is a party
to this appeal.
6 The Duran appellants designated their opposition to the
County’s summary judgment motion for inclusion in the appellate
record, but the opposition does not appear in the clerk’s transcript.
We therefore take judicial notice of the opposition. (See Evid. Code,
§ 452, subd. (d).)
5
illegally parked vehicles near the incident location obstructed
sightlines between pedestrians and motorists, and therefore
were “a primary cause of th[e] accident.” Dunlap’s report also
included a summary of prior accidents on 61st Street, as well
as measurements, taken on August 25, 2020, of the volume of
pedestrian and vehicular traffic near the accident site. In response,
the County filed reply papers, along with objections to certain
evidence submitted by the Duran appellants.
The trial court overruled the County’s objections and
granted summary judgment. With respect to the Duran appellants’
“dangerous condition” claim under section 835—the only claim
at issue on appeal—the trial court found that the undisputed
facts established the absence of a dangerous condition at the
accident location. The court entered judgment in favor of the
County and denied the Duran appellants’ subsequent motions
for reconsideration and a new trial. The Duran appellants timely
appealed.7
DISCUSSION
A. Standard of Review
1. Summary Judgment
“We review a trial court’s granting summary judgment
de novo, ‘considering all the evidence set forth in the moving
and opposition papers except that to which objections have been
7 We deny the County’s request that we strike the Duran
appellants’ opening brief due to various alleged violations of
the California Rules of Court, including “fail[ure] to include
cites to the record” and “fail[ure] to support each point with
legal argument.” The Duran appellants’ opening brief contains
numerous shortcomings, but it sets forth their arguments
sufficiently to permit consideration of their appeal on its merits.
6
made and [correctly] sustained.’ [Citation.] We ‘liberally constru[e]
the evidence in support of the party opposing summary judgment
and resolv[e] doubts concerning the evidence in favor of that
party.’ [Citation.]” (Peralta v. The Vons Companies, Inc. (2018)
24 Cal.App.5th 1030, 1034.)
2. New Trial
“Generally, rulings on new trial motions are reviewed for
an abuse of discretion. [Citation.] Nonetheless, in the case of
an order denying a new trial following summary judgment, the
determinations underlying the denial dictate our standard of
review. [Citation.] To the extent the denial relies on the resolution
of a question of law, including the nonexistence of triable issues
of fact, we examine the matter de novo.” (Wall Street Network,
Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1176.)
“We therefore review [a] challenge to the denial as we would
examine a direct attack on the order granting summary judgment,
insofar as [plaintiff] asserts that the evidence considered by the
trial court when it granted summary judgment raised triable issues
of fact.” (Id. at pp. 1176−1177.)
B. Law Governing Liability Arising from a
“Dangerous Condition” of Public Property
“Under the Government Claims Act, a tort action cannot
be maintained against a government entity unless the claim
is premised on a statute providing for that liability.” (Tansavatdi v.
City of Rancho Palos Verdes (Apr. 27, 2023, S267453) __ Cal.5th __
[2023 WL 3107312 at p. *5] (Tansavatdi), citing § 815.) Here, the
Duran appellants seek recovery “pursuant to section 835, which ‘ “is
the principal provision addressing the circumstances under which
the government may be held liable for maintaining a dangerous
condition of public property.” ’ [Citation.]” (Tansavatdi, supra,
7
___ Cal.5th __ [2023 WL 3107312 at p. *5].) “ To establish liability
under section 835, a plaintiff must show: ‘(1) “that the property
was in a dangerous condition at the time of the injury”; (2) “that
the injury was proximately caused by the dangerous condition”;
(3) “that the dangerous condition created a reasonably foreseeable
risk of the kind of injury which was incurred”; and (4) either (a) that
a public employee negligently or wrongfully “created the dangerous
condition” or (b) that “[the] public entity had actual or constructive
notice of the dangerous condition a sufficient time prior to the
injury to have taken measures to protect against the dangerous
condition.” ’ [Citation.]” (Tansavatdi, supra, ___ Cal.5th ___ [2023
WL 3107312 at p. *5].)
The Government Code also includes numerous statutory
provisions that limit a public entity’s liability, two of which—
sections 830.6 and 818.2—are relevant to this appeal.
“Section 830.6, commonly referred to as ‘design immunity,’
precludes liability for any injury caused by ‘the plan or design
of . . . , or an improvement to, public property.’ ” (Tansavatdi,
supra, __ Cal.5th __ [2023 WL 3107312 at p. *5], citing § 830.6.)
Section 818.2 immunizes a public entity against liability “for an
injury caused . . . by failing to enforce any law.” (§ 818.2.)
Here, the Duran appellants advance three theories in seeking
to impose section 835 liability on the County: (1) the County
created a dangerous condition by approving and implementing
plans for the complex that (a) called for the removal of the
crosswalk on 61st Street and (b) did not require the installation of
speed humps, (2) the County’s failure to enforce parking restrictions
on 61st Street resulted in a dangerous condition, and (3) the County
created a dangerous condition by failing to completely remove
the markings designating the former crosswalk on 61st Street.
8
All three theories fail. The statutory immunities afforded the
County under sections 830.6 and 818.2 defeat the Duran appellants’
first and second theories of liability, respectively. And the Duran
appellants’ faded crosswalk theory fails for lack of causation.
C. The County’s Section 830.6 Design Immunity
Precludes Liability for Removal of the Crosswalk
and the Absence of Speed Humps on 61st Street
The County urges that it has design immunity under
section 830.6 from any liability arising out of conditions
contemplated by the approved plans for the complex—namely,
(1) removal of the crosswalk on 61st Street, and (2) the absence
of any speed humps on the street. We agree.
“ ‘The rationale for design immunity is to prevent a jury
[or trial court acting as trier of fact] from second-guessing the
decision of a public entity by reviewing the identical questions
of risk that had previously been considered by the government
officers who adopted or approved the plan or design.’ ” (Tansavatdi,
supra, ___ Cal.5th ___ [2023 WL 3107312 at p. *5].) “[D]esign
immunity requires that a public entity establish three elements:
‘(1) a causal relationship between the plan or design and the
accident; (2) discretionary approval of the plan or design prior
to construction; and (3) substantial evidence supporting the
reasonableness of the plan or design.’ [Citation.] Resolution of
the third element—the existence of substantial evidence supporting
the reasonableness of the adoption of the plan or design—is a
matter for the courts, not the jury, to decide.” (Tansavatdi, supra,
__ Cal.5th __ [2023 WL 3107312 at p. *5], citing § 830.6.)
The Duran appellants do not dispute, and we agree, that
the County has satisfied the first two elements of design immunity.
As to the first element, the Duran appellants allege a causal
relationship between the accident and the County’s design
9
decisions. (See Alvis v. County of Ventura (2009) 178 Cal.App.4th
536, 550 (Alvis) [“[t]he County may rely on the allegations of
the complaint to establish [the] causation” element of design
immunity].) With respect to the second element, County engineers
approved the phase 1 and phase 2 plans for the complex, as well
as the signing and striping plan. (See Ramirez v. City of Redondo
Beach (1987) 192 Cal.App.3d 515, 526 [“[d]iscretionary approval
simply means approval in advance of construction by the legislative
body or officer exercising discretionary authority”].)
We further conclude that the County has established the
third element of design immunity because the record contains
substantial evidence supporting the reasonableness of the plans
for the complex. (Tansavatdi, supra, __ Cal.5th __ [2023 WL
3107312 at p. *5].) Licensed County engineers approved the plans,
“utiliz[ing] and rel[ying] upon the California Manual on Uniform
Traffic Control Devices and County guidelines,” as well as
“independent engineering judgment” in doing so. (See Grenier v.
City of Irwindale (1997) 57 Cal.App.4th 931, 941 [“[a]pproval of
the plan by competent professionals can, in and of itself, constitute
substantial evidence of reasonableness”].)
The Duran appellants insist that summary judgment is
inappropriate because their engineering expert disputes the plans’
reasonableness; however, section 830.6 provides that the third
element of design immunity is satisfied “if the trial or appellate
court determines that there is any substantial evidence upon the
basis of which . . . a reasonable legislative body or other body or
employee could have approved the plan or design.” (§ 830.6, italics
added.) In other words, the “ ‘normal rules governing a motion for
summary judgment, and requiring its denial if any triable issue of
fact appears, are not fully applicable . . . to cases involving design
immunity.’ ” (Wyckoff v. State of California (2001) 90 Cal.App.4th
1045, 50.) “The third element, substantial evidence of reasonableness,
[therefore] requires only evidence of solid value that reasonably
inspires confidence. [Citation.] We are not concerned with whether
the evidence of reasonableness is undisputed; the statute provides
immunity even if the evidence is contradicted.” (Alvis, supra, 178
Cal.App.4th at p. 550.) Accordingly, we conclude that the County
has established its entitlement to design immunity under section
830.6.
The Duran appellants’ contention that the County has lost
its design immunity does not persuade us otherwise. To establish a
public entity’s loss of design immunity, a plaintiff must prove three
elements, the first of which is that “the plan or design has become
dangerous because of a change in physical conditions.” (Cornette v.
Department of Transportation (2001) 26 Cal.4th 63, 66.) None
of the allegedly “changed conditions” that the Duran appellants
identify is sufficient to satisfy this element.
The Duran appellants first point to the construction of the
complex’s school and park, including the related decision to remove
the crosswalk on 61st Street. These changes, however, cannot
constitute “changed conditions” because they were part of the
County-approved plans for the complex. (See Alvis, supra, 178
Cal.App.4th at p. 555 [“the claimed change of physical conditions
cannot be based on the same technical data or policy decisions
that went into the original plan or design”].) The Duran appellants’
allegations concerning increased traffic volume also fail to
demonstrate changed conditions because the record contains no
evidence of traffic volume prior to construction of the complex.
Nor are we persuaded by the Duran appellants’ contention that
prior accidents on 61st Street demonstrate that changed conditions
rendered the street’s design—including removal of the crosswalk
at Naomi Ave—dangerous for pedestrians. The record discloses
11
that no other auto-pedestrian collisions occurred where 61st Street
meets Naomi Avenue during the approximately four-year period
between removal of the crosswalk and the accident giving rise to
this appeal. We therefore conclude that the Duran appellants have
failed to identify any “changed conditions” sufficient to negate the
County’s design immunity.8
The Duran appellants’ final argument—that illegally parked
cars and the faded crosswalk constitute “concealed trap[s]” under
section 830.8 that fall outside the scope of any design immunity 9 —
also misses the mark. We agree that these conditions are not part
of the County-approved plans for the complex and thus fall beyond
the reach of the County’s design immunity. But as set forth, post,
these conditions fail to support section 835 liability for other,
independent reasons—namely, the County’s section 818.2 immunity
and the Duran appellants’ failure to establish causation.
8 We therefore necessarily reject the Duran appellants’
contention that “changed conditions” required the County to install
speed humps on 61st Street.
9 “Section 830.8 provides [another] form of immunity,
precluding public entity liability ‘for an injury caused by the failure
to provide traffic or warning signals, signs, markings or devices
described in the Vehicle Code.’ [Citation.] Section 830.8, however,
sets forth a limitation to such immunity: ‘Nothing in this section
exonerates a public entity . . . from liability for injury . . . caused by
such failure if a signal, sign, marking or device . . . was necessary
to warn of a dangerous condition which endangered the safe
movement of traffic and which would not be reasonably apparent
to, and would not have been anticipated by, a person exercising
due care.’ This limitation to section 830.8 immunity is commonly
referred to as the ‘concealed trap’ exception.” (Tansavatdi, supra,
___ Cal.5th ___ [2023 WL 3107312 at p. *5].)
12
Accordingly, we conclude that the County’s section 830.6
design immunity bars the Duran appellants’ claims, to the extent
premised on removal of the crosswalk and the absence of speed
humps on 61st Street.
D. Section 818.2 Immunizes the County from
Liability for Any Failure to Enforce Parking
Restrictions
We turn next to the Duran appellants’ contention that the
County’s failure to enforce parking restrictions on 61st Street
created a dangerous condition. The plain language of section 818.2
immunizes the County from liability “for an injury caused by . . .
failing to enforce any law.” (§ 818.2.) The Duran appellants fail
to address section 818.2 or to distinguish Sutton v. Golden Gate
Bridge, Highway & Transportation Dist. (1998) 68 Cal.App.4th
1149, the primary case on which the County relies in arguing
that section 818.2 precludes liability for injuries caused by a
public entity’s failure to enforce traffic laws. (See Sutton, supra,
at p. 1165 [“as the District points out, it is entitled to immunity
[under section 818.2] for . . . any failure to enforce the speed limit”].)
We therefore conclude that the Duran appellants’ allegations
concerning illegally parked cars near the accident site cannot
support the imposition of section 835 liability on the County.
E. The Duran Appellants’ Faded Crosswalk Theory
Fails for Lack of Causation
Finally, the Duran appellants contend that the presence
of faded crosswalk markings at the accident site constituted
a dangerous condition of public property. Even assuming the
presence of such markings (which the County disputes), the
undisputed facts demonstrate that the faded crosswalk was not
a proximate cause of the accident. The Duran appellants’ theory
13
of causation is that Christian “thought he was crossing at a
crosswalk, since it[’]s faded.” The County points out, however,
that Oscar Duran testified at deposition that “Christian knew
there wasn’t a crosswalk at 61st Street” at the time of the accident.
This admission from Christian’s father is sufficient to shift the
summary judgment burden to the Duran appellants with respect to
the causation element of their section 835 claim. (See Alvis, supra,
178 Cal.App.4th at p. 547.) Yet the Duran appellants fail to explain
how we can reconcile the admission with their theory of causation.
Accordingly, we affirm the trial court’s grant of summary
judgment for the County.10
10 We ground our affirmance in the County’s statutory
immunities and Christian’s father’s admission concerning
causation. As a result, we need not address the parties’ remaining
arguments, which include disputes regarding notice, the declaration
of witness Romana Calderon, the characterization of the Naomi
Avenue driveway as a “ ‘T’-intersection,” and the trial court’s
purported failure to consider the Duran appellants’ oral arguments
concerning prior accidents at the summary judgment hearing.
14
DISPOSITION
We affirm the trial court’s December 11, 2020 judgment.
The County is awarded its costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
15