On 03/16/2016 SCOTT DOPKE filed a Personal Injury - Other Personal Injury lawsuit against CITY OF PASADENA. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles, California
CITY OF PASADENA
DOES 1 TO 20
GAULE JOHN V. ESQ
SCHIMMEL ALAN IRWIN
LAW OFFICE OF JOHN V. GAULE
BAGNERIS MICHELE BEAL CITY ATTORNEY
1/26/2018: DEFENDANT CITY OF PASADENA'S NOTICE OF MOTION; MOTION FOR ORDER DEEMING ADMITTED DEFENDANT CITY OF PASADENA'S REQUESTS FOR ADMISSION (SET ONE) TO PLAINTIFF SCOTT DOPKE; ETC.
1/26/2018: DEFENDANT CITY OF PASADENA'S NOTICE OF MOTION; MOTION TO COMPEL PLAINTIFF SCOTT DOPKE'S RESPONSES TO DISCOVERY; ETC.
1/26/2018: DEFENDANT CITY OF PASADENA'S NOTICE OF MOTION; MOTION FOR ORDER DEEMING ADMITTED DEFENDANT CITY OF PASADENA'S REQUESTS FOR ADMISSION (SET ONE) TO PLAINTIFF MARYANN DOPKE; ETC.
2/14/2018: DECLARATION OF JOHN V. GAULE IN RESPONSE TO MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES, ETC.
5/16/2018: ORDER GRANTING MOTION TO CONTINUE TRIAL DATE
5/16/2018: Minute Order
5/17/2018: NOTICE OF ASSOCIATION OF COUNSEL
8/3/2018: DEFENDANT CITY OF PASADENA'S INDEX OF EXHIBITS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
8/3/2018: DEFENDANT CITY OF PASADENA'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
4/2/2019: Request/Counter-Request To Set Case For Trial
5/23/2019: Minute Order
3/16/2016: Civil Case Cover Sheet
5/26/2017: STIPULATION AND ORDER RE WITHDRAWING ANSWER
6/29/2017: ORDER AND STIPULATION TO CONTINUE TRIAL, FSC [AND RELATED MOTION/DISCOVERY DATES] PERSONAL INJURY COURTS ONLY (DEPARTMENT 91, 92, 93, 97 )
12/7/2017: Minute Order
12/12/2017: NOTICE OF RULING RE: JOINT EXPARTE APPLICATION FOR CONTINUANCE OF TRIAL AND FSC
Case Management Statement; Filed by City of Pasadena (Defendant)Read MoreRead Less
at 10:34 AM in Department B; Court OrderRead MoreRead Less
Minute Order ( (Court Order)); Filed by ClerkRead MoreRead Less
Certificate of Mailing for (Minute Order (Court Order) of 05/23/2019); Filed by ClerkRead MoreRead Less
Request/Counter-Request To Set Case For Trial; Filed by Scott Dopke (Plaintiff)Read MoreRead Less
Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Scott Dopke (Plaintiff); MaryAnn Dopke (Plaintiff)Read MoreRead Less
NOTICE OF CASE REASSIGNMENTRead MoreRead Less
at 08:30 AM in Department 3; Ex-Parte Proceedings (Exparte proceeding; Transferred to different departmnt) -Read MoreRead Less
Minute OrderRead MoreRead Less
Minute order entered: 2018-08-30 00:00:00; Filed by ClerkRead MoreRead Less
NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATIONRead MoreRead Less
Notice of Change of Address or Other Contact Information; Filed by Scott Dopke (Plaintiff); MaryAnn Dopke (Plaintiff)Read MoreRead Less
Answer; Filed by City of Pasadena (Defendant)Read MoreRead Less
CROSS COMPLAINT - PERS. INJURY PROPERTY DAMAGE, WRONG DEATH (2 PAGES)Read MoreRead Less
ANSWER-PERSONAL INJURY PROPERTY DAMAGE, WRONGFUL DEATHRead MoreRead Less
Cross-Complaint; Filed by City of Pasadena (Defendant)Read MoreRead Less
Summons; Filed by Plaintiff/PetitionerRead MoreRead Less
Complaint; Filed by Scott Dopke (Plaintiff); MaryAnn Dopke (Plaintiff)Read MoreRead Less
Civil Case Cover SheetRead MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC611949 Hearing Date: November 08, 2019 Dept: NCB
North Central District
SCOTT DOPKE, et al.,
city of pasadena,
Case No.: BC611949
Hearing Date: November 8, 2019
[TENTATIVE] order RE:
motion for summary judgment or in the alternative summary adjudication
Plaintiffs Scott Dopke and MaryAnn Dopke (“Plaintiffs”) are the parents of the decedent, Nick Dopke (“Decedent”). They allege that on May 31, 2015, traffic had been rerouted at Del Mar Boulevard and Meredith Avenue in Pasadena because a bicycle race was causing more congestion than normal. Plaintiffs allege that the vehicles parked on westbound Del Mar and the trees on the northside of Del Mar obscured the sight lines of drivers turning left onto eastbound Del Mar from Meredith Avenue, making it impossible to see a motorcycle traveling in the right of way on westbound Del Mar. As a result, the Decedent (who was riding his motorcycle westbound on Del Mar) and Thomas Barela (the driver of the vehicle that was making a left turn onto Del Mar from Meredith) collided, causing the death of Decedent. Plaintiffs allege that Defendant City of Pasadena (“City”) owned the public property on which the dangerous condition existed.
The complaint, filed March 26, 2016, alleges causes of action for: (1) general negligence and (2) premises liability.
Motion for Summary Judgment/Adjudication
On August 3, 2018, City filed a motion for summary judgment or, in the alternative, motion for summary adjudication. City seeks summary judgment and/or summary adjudication on the following issues:
(1) The 1st cause of action (general negligence) fails because there is no statutory basis for liability against the City, a public entity;
(2) The 2nd cause of action (dangerous condition of public property) fails because the intersection at Del Mar Blvd. and Meredith Ave. in Pasadena (“Subject Intersection”) was not the proximate cause of the collision;
(3) The 2nd cause of action fails because the City had no actual notice of a dangerous condition at the Subject Intersection;
(4) The 2nd cause of action fails because the City had no constructive notice of a dangerous condition at the Subject Intersection;
(5) The City is immune from liability for the incident under the design immunity set forth in Gov. Code § 830.6;
(6) The City is immune from liability pursuant to Gov. Code § 820.8 because the City is not liable for the acts of third parties; and
(7) The City is immune from liability pursuant to Gov. Code § 820.2 for discretionary acts.
On October 28, 2019, Plaintiffs filed an opposition to the motion.
With the reply brief, City submitted evidentiary objections. The Court overrules the objections to Plaintiff’s opposition papers and Plaintiff’s responses/objections in Plaintiff’s response to the separate statement.
1st cause of action for General Negligence
“A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute. (§ 815.) Section 835 is the sole statutory basis for a claim imposing liability on a public entity based on the condition of public property.” (Brenner v. City of El Cajon
City moves for summary judgment/adjudication on the 1st cause of action, arguing that there is no statutory basis for liability against it as a public entity.
The 1st cause of action for general negligence is not based on a statute. To the extent that the negligence cause of action is a premises liability cause of action, the 2nd cause of action for dangerous condition on public property is sufficient to adjudicate these matters.
In the opposition brief, Plaintiff does not dispute this.
Thus, the motion is granted as to the 1st cause of action (Issue 1).
2nd cause of action for Dangerous Condition on Public Property
City moves for summary judgment and/or summary adjudication on the 2nd cause of action, arguing that it fails because the Subject Intersection was not the proximate cause of the collision, and City had no actual or constructive notice of the dangerous condition at the Subject Intersection.
Dangerous Condition on Public Property
“A public entity is liable for injury caused by a dangerous condition of its property if (1) the property was in a dangerous condition at the time of the injury; (2) the dangerous condition caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) 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 condition, or (b) the public entity had actual or constructive notice of the dangerous condition in time to have taken measures to protect against the dangerous condition.” (Moncur v. City of Los Angeles
A “dangerous condition” is a condition of public property that “create[s] 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 was reasonably foreseeable that it would be used.” (Gov’t. Code §830.) A condition that creates only a minor, trivial or insignificant risk of injury is not a dangerous condition. (Gov’t Code, §830.2; CACI 1102.) In determining whether a defect is trivial as a matter of law, the Court first “reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting, and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff's knowledge of the area.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-68.) The existence of a dangerous condition is ordinarily a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 759.)
City argues that there is no evidence of any defects in the Subject Intersection that was the proximate cause of the accident.
City argues that Del Mar is a flat, straight roadway that runs east-west, and Meredith runs north-south. (City Fact 4.) The speed limit for both directions of Del Mar between Allen Ave and Meredith Ave is 35 mph. (City Fact 5.) Weston Pringle (a registered professional engineer retained by City) states drivers like Barela who are stopped at the Meredith limit line at the Subject Intersection looking to turn left, have a visibility of cross-traffic at Allen, which is where Decedent had been coming from immediately prior to the collision. (City Fact 30.) Mr. Pringle and Joaquin Siques (Traffic Engineer for City) state that there are no sight obstructions at the Subject Intersection that would affect driver safety. (City Fact 29.)
City also argues that an ordinary, reasonable person riding westbound on Del Mar at Meredith would not have faced a substantial risk of injury because of a car turning left from southbound Meredith onto eastbound Del Mar, absent negligence, and thus Plaintiffs cannot show the roadway created a risk of injury if it had been used with due care in a reasonably foreseeable manner.
The Court finds that based on the facts and evidence presented by City, City has upheld its initial burden in summary judgment and/or adjudication as the Subject Intersection did not amount to a dangerous condition on public property and thereby was not independently the cause of Decedent’s death.
In opposition, Plaintiff attempts to raise a triable issue of material fact by citing to Barela’s deposition testimony. Barela testified that when he stopped at Meredith, he saw vehicles parked on Del Mar pointing in a westerly direction (i.e., to his left), and that he was not able to get a clear, unobstructed view of westbound traffic on Del Mar from the point he stopped due to the parked vehicles. (City’s Evid., Ex. C [Barela Depo. at 26:9-23].) However, Plaintiff has not provided the declaration of an expert—or in fact any evidence at all with the opposition brief—that the Subject Intersection does or does not constitute a dangerous condition and whether it was a dangerous condition because City allowed cars to park on the streets, the trees were untrimmed, etc. Thus, the Court does not find that Barela’s deposition testimony that cars obstructed his view at the time of the subject incident satisfactorily disputes the evidence raised by City that the condition of the roadway or Subject Intersection is and was dangerous and in themselves had a causal relationship to Decedent’s death.
Whether Decedent was riding his motorcycle at 75 mph is not the issue in this action. Rather, the action is whether the parked cars on Del Mar and trees obstruct the sight lines for drivers to see oncoming cross-traffic at the Subject Intersection. However, Plaintiffs have not raised any opposing evidence to dispute Decedent’s speed, nor have Plaintiffs shown that the Subject Intersection and parked cars (or trees surrounding the roadway) were the proximate cause of Decedent’s injury.
Plaintiffs also argue that City has not upheld its initial burden because City failed to take into account that CicLAvia (a family friendly bicycling event) was happening on the day of the event and traffic was rerouted to the road taken by Decedent. However, Plaintiffs fail to raise any triable issue of material fact showing that the other roads were more congested or unsafe as a result of the reroutes or that the Subject Intersection was tampered with that day that may have caused or contributed to Decedents’ death. Thus, the motion for summary judgment is granted as to the 2nd cause of action on this ground (Issue 2).
Actual and Constructive Notice
Another factor to establish liability for a dangerous condition is that the public entity had actual or constructive notice of the dangerous condition in time to have taken measures to protect against it. (Gov’t Code, §835(b).) A public entity has “actual notice” of a dangerous condition if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. (Gov’t Code, §835.2(a).) A public entity has “constructive notice” 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.” (Gov’t Code, §835.2(b).)
City argues that it was not on actual notice of a dangerous condition of public property. City states that it maintains a computerized database of all tort claims for damages presented to the City, dating back to 1979, and that no claims were filed alleging a dangerous condition of public property regarding the Subject Intersection, nor have there been any complaints, claims, or request for inspections/repair from 10 years prior to the accident and from January 1, 2008 to May 31, 2015. (City Fact 34-35; Markarian Decl., ¶16; Siques Decl., ¶13.) City acknowledges that there have been prior accidents at the Subject Intersection at a collision rate of .08 collisions per million entering vehicle, but argues that this is less than the expected 0.26 collisions per million entering vehicles for a similar roadway. (City Fact 19.)
City relies on Kris Markarian’s declaration to argue that it was not on constructive notice of a dangerous condition. Mr. Markarian (City Engineer) states that City had a reasonable inspection system that should have discovered any defects at the Subject Intersection, which included a bi-annual street inspection program where streets were observed for repair needs, and such defects are repaired as soon as is reasonably possible. (City Fact 36-37; Markarian Decl., ¶¶15-21.) He states that no defects in the subject area were reported prior to the collision. (City Fact 36-37.)
The Court finds that City has upheld its initial burden on the issue of notice. Thus, the burden shifts to Plaintiffs to raise a triable issue of material fact.
In opposition, Plaintiffs do not necessarily dispute that City was not on actual notice; rather, they argue that they need not show there were prior complaints or traffic accidents. (Opp. at p.16.) They also argue that they will present evidence at trial that City knew or should have known about the dangerous condition, including overgrowth and obstructions of line of sight. (Id. at p.18.) However, the case is already at the summary judgment/adjudication stage. To the extent Plaintiffs lack evidence on certain issues, they should have applied ex parte or requested in their opposition a continuance of the motion so that they could conduct discovery and present them in their opposition to this motion. (CCP §437c(h).) They have not done so and merely arguing that they will provide such evidence later is not sufficient to raise a triable issue of material fact pursuant to CCP §437c(b) and (p)(2).
Thus, the motion is granted as to the 2nd cause of action on this ground as well (Issues 3 and 4).
Other Arguments Raised by City
As City’s motion is granted on Issues 2-4 as to the 2nd cause of action, which are sufficient in themselves to grant the motion for summary judgment as to the 2nd cause of action, the Court need not discuss City’s claim of immunity in Issues 5-7.
CONCLUSION AND ORDER
For the reasons stated above, City’s motion for summary judgment against Plaintiff’s complaint is granted. City is ordered to electronically lodge with the Court and serve on Plaintiffs a proposed judgment within ten (10) days and to provide notice of this order.
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