On 02/05/2018 ERIC JOHN BERNI filed a Personal Injury - Other Personal Injury lawsuit against GREG VILLEGAS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are PATRICIA D. NIETO and BENNY C. OSORIO. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
PATRICIA D. NIETO
BENNY C. OSORIO
BERNI ERIC JOHN
SOUTH EL MONTE THE CITY OF
DOES 1 TO 100
THE CITY OF SOUTH EL MONTE
NGUYEN MARY ESQ.
NGUYEN MARY LAW OFFICES OF
WESIERSKI & ZUREK LLP
DAVIS & ASSOCIATES
DAVIS MONTE R. JR. ESQ.
DAVIS MONTE R. JR. ESQ.
8/3/2018: Case Management Statement
8/9/2018: Case Management Statement
8/14/2018: Case Management Statement
8/14/2018: Notice of Case Management Conference
11/19/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
12/11/2018: Minute Order
5/15/2019: Motion for Summary Judgment
5/11/2018: Minute Order
4/23/2018: ANSWER OF CITY OF SOUTH EL MONTE TO CROSS COMPLAINT
4/11/2018: PROOF OF SERVICE SUMMONS
4/10/2018: CROSS-COMPLAINT FOR APPORTIONMENT OF FAULT, INDEMMFICATION AND DECLARATORY RELIEF
3/22/2018: CROSS COMPLAINT - PERS. INJURY PROPERTY DAMAGE, WRONG DEATH (2 PAGES)
3/22/2018: ANSWER OF CITY OF SOUTH EL MONTE TO COMPLAINT
3/19/2018: NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT REQUESTING PUNITIVE DAMAGES AND ATTORNEY'S FEES; MEMORANDUM OF POINTS AND AUTHORITIES
2/5/2018: COMPLAINT FOR DAMAGES 1. DANGEROUS CONDITION OF PUBLIC PROPERTY (GOV. CODE SECTION 835 (A) (B)). ;ETC
Motion for Summary Judgment; Filed by The City of South El Monte (Legacy Party)Read MoreRead Less
Separate Statement; Filed by The City of South El Monte (Legacy Party)Read MoreRead Less
Other - (Compendium Of Evidence In Support Of Motion For Summary Judgment, Or In The Alternative, Summary Adjudicatio Defendant City Of South El Monte's Compendium Of Evidence In Support Of Motion For Summary Judgment, Or In); Filed by The City of South El Monte (Legacy Party)Read MoreRead Less
at 09:30 AM in Department B; Jury Trial - Not Held - Continued - Party's MotionRead MoreRead Less
at 08:35 AM in Department B; Final Status Conference - Not Held - Continued - Party's MotionRead MoreRead Less
at 08:30 AM in Department 2F; Hearing on Motion for Summary Judgment - Not Held - Taken Off Calendar by PartyRead MoreRead Less
Notice of Ruling; Filed by The City of South El Monte (Legacy Party)Read MoreRead Less
at 11:45 AM in Department B; Ex-Parte Proceedings - Held - Motion GrantedRead MoreRead Less
Ex Parte Application (to continue the Trial Date; Memorandum of Points and Authorities; Declaration of Rosa M Bugarin in support thereof; Declaration of Sacha Fennell; and [Proposed] Order); Filed by The City of South El Monte (Legacy Party)Read MoreRead Less
Minute Order ((Defendant's Ex-Parte Application to Continue Trial)); Filed by ClerkRead MoreRead Less
COMPLAINT FOR DAMAGES 1. DANGEROUS CONDITION OF PUBLIC PROPERTY (GOV. CODE SECTION 835 (A) (B)). ;ETCRead MoreRead Less
ORDER ON COURT FEE WAIVERRead MoreRead Less
Order on Court Fee Waiver (Superior Court); Filed by Eric John Berni (Plaintiff)Read MoreRead Less
Request to Waive Court Fees; Filed by Plaintiff/PetitionerRead MoreRead Less
Complaint; Filed by Eric John Berni (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
REQUEST TO WAIVE COURT FEESRead MoreRead Less
Request to Waive Court Fees; Filed by Eric John Berni (Plaintiff)Read MoreRead Less
Request-Waive Court Fees; Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC692687 Hearing Date: June 26, 2020 Dept: NCB
North Central District
ERIC JOHN BERNI,
GREG vILLEGAS, et al.,
Case No.: BC692687
Hearing Date: June 26, 2020
[TENTATIVE] order RE:
motion for summary judgment or in the alternative summary adjudication
This action involves a motor vehicle v. pedestrian action. Plaintiff Eric John Berni (“Plaintiff”) alleges that he was walking westbound at the crosswalk located on Lexham Avenue on June 3, 2017 at around 9:50 a.m., when he was struck by the vehicle driven by Defendant Greg Villegas (“Villegas”). Plaintiff alleges that Villegas was driving at an unsafe and excessive speed.
Plaintiff alleges that Defendants City of South El Monte (“City”) maintained a dangerous condition on public property. He alleges that drivers proceeding from Fawcett Avenue “unto” Andrews Avenue have no stop on Fawcett Avenue to prevent oncoming traffic from injuring pedestrians as they cross at the crosswalk. (Compl., ¶12.) Plaintiff alleges that traffic traveling on Fawcett Avenue turning onto Lexham Avenue do so blindly such that drivers cannot see pedestrians crossing the street until have already made the turn onto Lexham Avenue. (Id., ¶13.) He alleges that City failed to regulate oncoming traffic by allowing cars to proceed into a blind turn and directly into a crosswalk. (Id., ¶14.) He alleges that the crosswalk was arguably designated as an area for pedestrians to safely cross the street, but vehicles turning from Fawcett onto Lexham do so blindly and unimpededly. (Id., ¶¶16-17.)
The complaint, filed February 5, 2018, alleges causes of action for: (1) dangerous condition of public property (Gov’t Code, §835(a)-(b)) against City; (2) motor vehicle negligence against Villegas; and (3) NIED against all Defendants. On April 5, 2018, Plaintiff dismissed the 3rd cause of action against City.
On March 22, 2018, City filed a cross-complaint against Villegas for: (1) indemnification and (2) apportionment of fault.
On April 10, 2018, Villegas filed a cross-complaint against City for: (1) indemnification; (2) apportionment of fault; and (3) declaratory relief.
B. Motion for Summary Judgment/Adjudication
On December 16, 2019, City filed a motion for summary judgment or alternatively summary adjudication on Plaintiff’s complaint. City moves for summary judgment, arguing that it has a complete defense under design immunity under Government Code, § 830.6 on the 1st cause of action in the complaint, regardless of whether or not a dangerous condition exists. Alternatively, City moves for summary adjudication on the 1st cause of action in the complaint on the grounds that no dangerous conditions existed on the property and, even if there was, Plaintiff was not exercising due care.
Concurrently, City moves for summary judgment or summary adjudication against Villegas on his cross-complaint for indemnity arguing that if City has no liability to Plaintiff, it cannot be liable to Villegas for indemnity.
On March 2, 2020, Villegas filed an opposition to the motion.
On March 6, 2020, Plaintiff filed an opposition to the motion.
On March 12, 2020, City filed reply briefs to each of the oppositions.
REQUEST FOR JUDICIAL NOTICE
With the opposition papers, Plaintiff requests judicial notice of: (1) Exhibit 9 which includes records from City’s website at http://ci.south-el-monte.ca.us/ showing audio records of City Council meetings taken on June 9, 2009, January 24, 2012, March 8, 2016, July 12, 2016, and August 23, 2016; (2) Exhibit 6 which includes the CA Manual on Uniform Traffic Control Devices on the California Department of Transportation website; (3) Exhibits 2-4 which include Google Map view of Fawcett and Lexham as it was in July 2012, the accident area with the School Warning Assembly sign installed after July 2012, and the accident area with the original “school crossing ahead” sign in July 2012 before it was removed and replaced with a school zone sign, respectively. The request is granted. (Evid., Code, §452(c), (h).)
City submitted evidentiary objections to the exhibits submitted by Plaintiff in his opposition. Evidentiary objection nos. 1-12 are overruled; and objection no. 13 (regarding Exhibit 11’s traffic collision report) is sustained as more fully discussed below.
City submitted evidentiary objections to the declaration of Mark Miller submitted by Villegas in his opposition. Evidentiary objection nos. 1-3, 5-6, and 8-19 are overruled; and objection nos. 4 and 7 are sustained. To the extent that Mark Miller’s declaration is directed towards City’s previously withdrawn motion for summary judgment papers, the Court will allow the declaration statements as admissible, as such reason is not necessarily a ground to sustain the objections to the evidence. Rather, City has shown in its reply papers where the discrepancies lie. Further, to the extent that City disagrees with Mark Miller’s opinions, this is not a sufficient basis for sustaining the objections as City may present arguments and refute evidence in the reply brief to discredit the expert.
The following facts regarding the subject accident are undisputed. The subject incident occurred in the city of South El Monte, near where Lexham Avenue and Fawcett Street bisect. (City Fact 1.) Where Lexham and Fawcett bisect, they form an “L”, meeting at a 90-degree angle. (Id. at 3.) The 2 roadways are in a residential area, and a school is located on Lexham 600 feet to the southeast of where Lexham bisects with Fawcett. (Id.) There is a marked crosswalk on Lexham 19 feet from the nearest curb of Fawcett. (Id. at 4.) For cars driving north on the straightaway on Lexham, there is a stop sign as they reach the crosswalk near Fawcett. (Id. at 7.) In contrast, for cars driving on Fawcett towards Lexham, there is no stop sign when drivers reach the crosswalk after the turn onto Lexham. (Id. at 8.)
At the time of the incident, Villegas was driving east on Fawcett, turned the corner (left) to proceed south onto Lexham, and impacted Plaintiff who was crossing Lexham near where the streets bisect. (Id. at 5.) Plaintiff testified that he was familiar with the area and knew of the crosswalk. (Id.) Plaintiff admitted in the RFAs propounded by City that at the time he started crossing the street, the point of impact, the time of the accident, and his point of rest following the accident, he was outside the marked crosswalk on Lexham. (City COE, Ex. 21.) Villegas testified that he was driving 15 mph on Fawcett as he approached the curve and slowed to about 5-10 mph at the actual curve in the road to turn onto Lexham. (Id. at 11.)
1. Dangerous Condition on Public Property Cause of Action in the Complaint
a. Relevant Law Regarding 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.)
b. Dangerous Condition
City argues that a dangerous condition did not exist on public property at the subject area on Lexham and Fawcett. City argues that it took several precautions to ensure users of the roadway would do so safely.
First, City argues that leading up to the curve, pavement markings indicating “SLOW CURVE” is located on the Fawcett approach beginning about 220 feet before it turns into Lexham. (City Fact 12; Rock Miller, ¶8.) City’s expert, Rock Miller (a Traffic and Civil Engineer), provides photographs that he took of the subject roadway based on his personal visits to the roadway on March 13, 2019 and May 8, 2019. (Rock Miller, ¶6; City’s Compendium of Exhibits [COE], Exs. 2-4 [Photographs].) City also argues that parking is also prohibited around the inside of the curve. (City Fact 15.)
In opposition, Plaintiff argues that the “SLOW CURVE” and red curb were faded and unrecognizable at the time of the accident and were only repainted after the incident. (Pl.’s Fact 24, 48.) Plaintiff provides Villegas’ deposition testimony wherein he testified that he did not recall seeing the “SLOW CURVE” markings at the time of the accident. (Pl.’s COE, Ex. 1 [Villegas Depo. at 26:13-27:1].) However, this deposition testimony and the Google Map pictures of the road are not sufficient to raise a triable issue of material fact about whether the “SLOW CURVE” markings existed at the time of the accident. It is not entirely clear when the pictures in Plaintiff’s opposition were taken, at what location/distance (i.e., 220 feet back), and what time period the Google Map images refer to. In reply to Plaintiff’s opposition, City provides its Exhibit 1 and Plaintiff’s Exhibit 4, which are Google Map images of the street view of Fawcett taken on the same day. City argues that Plaintiff’s Exhibit 4 picture was taken further up the street in a misleading manner, past the street markings. In contrast, City’s Exhibit 1 indeed shows that farther back on Fawcett, the “SLOW CURVE” street markings were present, visible, and not deteriorated. Plaintiff’s evidence also does not support a finding that the red curb at Fawcett and Lexham had become deteriorated. Thus, Plaintiff has not raised a triable issue on these matters.
In his opposition, Villegas argues that City should have installed a sign informing westbound drivers that the curve advisory speed or comfortable speed of the curve is 15 mph. However, in this case, Villegas was proceeding at 15 mph when he was going straight on Fawcett, and he even testified that he was driving 5-10 mph when he was starting to curve and at the time of impacting Plaintiff. As such, whether a speed sign was or was not present has no bearing on whether the subject accident would have been prevented. Further, “[a] condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.” (Gov’t Code, §830.4.) While Plaintiff’s expert, Mark Miller (a registered Civil and Traffic Engineer), may opine that advisory speed signs should have been posted (Mark Miller Decl. at p.8, Item 9/60/90), the failure to do so does not create liability. Further, Mark Miller does not cite to a portion of the approved plans that a speed limit sign was required.
Second, City argues that a yellow “School Crossing Ahead” sign is located 35 feet before the roadway begins to turn and about 115 feet from the near edge of the school crosswalk. (City Fact 13.) The photograph taken by Rock Miller shows that a School Warning Assembly A (CA) sign is currently installed. (City COE, Ex. 4; Pl.’s COE Ex. 6 [Cal. MUTCD 2014 Edition re Signs at p.1270].) In opposition, Plaintiff disputes and argues that the sign is not a “School Crossing Ahead” sign as represented by City. (Pl.’s Fact 13, 24, 64.) Plaintiff argues that the proper “School Advance Crossing Assembly” sign was removed and replaced with the current signage. However, Plaintiff has not shown in the opposition brief or in his disputed material facts what type of school signage was required. Instead, Plaintiff just cites to Exhibits 2-6 of his evidence, which include pictures (Ex. 2-4), the plans (Ex. 5), and the California MUTCD rules (Ex. 6). The plans do not indicate that a particular type of school sign was required. Similarly, in his opposition, Villegas too acknowledges that the notes do not specify the type or message of the sign to be installed. (Villegas’ Opp. at p.5.) Thus, the Court does not find that Plaintiff or Villegas have raised a triable issue of material fact regarding the type of sign installed.
Third, City argues that a pair of standard W1-6 yellow arrow warning signs are mounted in the head-on position facing both roadway approaches advising motorists of the need to turn at the elbow. (City Fact 14.) This is undisputed by Plaintiff. (Pl.’s Fact 14.) Villegas’ expert, Mark Miller, opines that these signs were optional and only recommended (Mark Miller Decl. at p.8, Item 14/65); however, this opinion does not raise a triable issue of material fact that the arrow warning signs were there and advised motorists of a need to turn.
Fourth, City argues that a double yellow stripe separates opposing traffic flow through the elbow and begins approximately 30 feet prior to the start of the curve on Fawcett. (City Fact 15.) Plaintiff opposes Fact 15 by relying on Villegas’ deposition testimony about his knowledge of the “SLOW CURVE” markings (Ex. 1) and photographs of the roadway (Exs. 2-3), but this evidence does not dispute the existence of the yellow stripes and Exhibits 2-3 actually support a showing of the stripes’ existence. Thus, this is not effectively disputed by Plaintiff. Even if it were, Plaintiff has not shown how the double yellow strips constituted a dangerous condition.
Fifth, City argues that the roadway was constructed so that a motorist could see to the crosswalk, without obstruction, from a greater distance than is required by government standards and a greater distance than is necessary to brake to a full stop. (City Fact 16-22.) Rock Miller states that he measured the sight line for a motorist approaching the curve on Fawcett to the middle of the crosswalk on Lexham and that the line of sight is approximately 110 feet. (Rock Miller Decl., ¶10.) He states that the distance measured along the path of a vehicle approaching the crosswalk through the curve is 136 feet. (Id.) He opines that the measured line of sight distance from the point of impact to a vehicle approaching Fawcett was 145 feet. (Id.) Based on the Caltrans Highway Design Manual, the sight distance for new construction is 100 feet at 15 mph and 125 feet at 20 mph. (Id.; City COE, Ex. 24 [Caltrans Manual at Table 201.1].)
Plaintiff testified that at the time of the accident, he was in the vicinity of but north of the crosswalk and it was his intention to cross the street then head south or down the street. (City COE, Ex. 23 [Pl. Depo. at 109:14-22].) Villegas testified that on the day of the incident, he was driving at 15 mph when approaching the curve and that he had seen Plaintiff standing between a light pole and tree as he was stepping out to walk towards the overpass across the street. (City COE at Ex. 22 [Villegas Depo. at 12:4-22, 15:2-3].) Villegas testified that Plaintiff stepped off the sidewalk, but not in the crosswalk, as the crosswalk was approximately 30 feet away. (Villegas Depo. at 15:2-18.) He states that Plaintiff made it past the double yellow line on the street and into Villegas’ lane when Villegas belatedly hit the brakes. (Id. at 15:19-16:3.) As such, Villegas states that the accident did not occur in the crosswalk. (Id. at 16:8-10.) He states that he was going about 10 mph when he hit the brakes and was driving about 8 mph or 5-10 mph after he stepped on the brakes. (Id. at 24:12-18.) Villegas did not recall any visual obstruction at the time of the incident. (Id. at 25:4-8.)
Taking into account Villegas’ speed immediately prior to and at the time of the incident, City has shown that the sight line for motorists approaching the curve was sufficient for Villegas to see Plaintiff (also as the “SLOW CURVE” sign was placed 220 feet prior to the curve). Rock Miller testified that a sight line of 100 feet is recommended for cars driving at 15 mph, and here Villegas was driving 15 mph when he approached the curve, about 10 miles at the curve, and 5-10 mph when he collided with Plaintiff. Rock Miller opines that the distance provided is more than appropriate for design based upon expected speeds approaching the collision site and that the conditions are even more beneficial because vehicles on Fawcett would already be slowing as the approached the rounded curb, reducing the reaction time to start braking. (Rock Miller Decl., ¶10.)
In opposition, Plaintiff argues that the line of sight of vehicles approaching the crosswalk was substantially obscured by a large black rod iron fence located at the corner of the intersection, such that the line of sight could not be 110 feet. (Pl.’s Fact 16; Pl.’s COE at Ex. 2 [Photograph].) Exhibit 2 only includes a picture showing the curve with the black fence, but fails to provide any conflicting testimony by an expert declaration or otherwise that the sight lines at the point of impact in this particular case was obscured. Further, Plaintiff was not even crossing at the crosswalk such that the fence and its purported obstruction of sight lines would have no effect on this case. (In fact, Villegas testified that he saw Plaintiff standing on the street as Villegas was approaching the curve—he just did not anticipate that Plaintiff would step onto the street towards oncoming traffic.)
Plaintiff also tries to argue that he was only 4 feet from the center of the crosswalk at the time of the accident by citing to the police report (Ex. 11), but a traffic collision report is not admissible (nor was it properly authenticated). Vehicle Code, §20013 provides: “No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident….” A police officer’s report is not admissible under the business records or official records exception to the hearsay rule, or even if the officer testified in court, because his opinion that one party was “responsible” for the accident is an improper legal conclusion. (Carlton v. Department of Motor Vehicles (1988) 203 Cal.App.3d 1428, 1432; see Kramer v. Barnes (1963) 212 Cal.App.2d 440, 446; Hoel v. City of Los Angeles (1955) 136 Cal.App.2d 295, 309; Witkin Cal. Evid. (5th Ed.) §240 Hearsay – Police and Other Accident Reports [stating police reports made by an officer who did not see the accident constitute hearsay statements of others and the opinions of officers].) Even if relied upon, Plaintiff has not provided a declaration of an expert or accident reconstructionist showing how this 4-feet distance from the crosswalk was actually calculated. In reply, City provides Officer Francis Bui’s deposition wherein he testified that he did not get the impression that the location of the impact differed from Villegas’ testimony. (Reply to Pl.’s Opp. at Ex. 4 [Bui Depo. at p.22].) Thus, Plaintiff has not raised a triable issue of material fact regarding the sight lines.
Sixth, City argues that a stop sign at the crosswalk is not necessary to have prevented the accident because Plaintiff was not in the crosswalk at the time of the accident. (City Fact 6.) The parties do not appear to dispute that Plaintiff was not in the crosswalk at the time of the incident. (See Fact 6.) Rock Miller opines that the stop sign on Lexham helped assure motorists to travel slowly on the straightaway approaching the crosswalk, but that one was not necessary on Fawcett approaching the curve before reaching the crosswalk because traffic had to slow to make the curve. (Rock Miller Decl., ¶26.) He also opines that because the subject collision occurred outside the marked crosswalk, traffic controls at the crosswalk would not be relevant to the collision outside the crosswalk. (Id.)
In opposition, Villegas argues that simple signage would have helped City avoid liability for accidents at the subject location. However, pursuant to Government Code, § 830.4, a condition is not dangerous because of the failure to provide signage. Moreover, “the proffer of an expert declaration opining that a condition is dangerous does not preclude summary judgment.” (Thimon v. City of Newark “[A] court may determine that the conditions shown do not constitute a dangerous condition as a matter of law and that no triable issue of material fact has been raised by the evidence, including one or more expert declarations.” (Id. at 763–764.)
Based on the above, the Court finds that City has upheld its initial burden and that Plaintiff has failed to raise a triable issue of material fact.
The Court notes that the parties discuss the element of actual and/or constructive notice. However, City did not move for summary judgment or summary adjudication on the element of notice, and thus the Court declines to rule on the motion.
c. Due Care
“Property is not ‘dangerous’ within the meaning of the statutory scheme if the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care.” (Brenner v. City of El Cajon “Even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.” (Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 561.) “[T]here is a limit as to how far society should go by way of direct governmental regulation of commercial and private activity, or indirect regulation thereof through the tort system, in order to protect individuals from their own stupidity, carelessness, daring or self-destructive impulses.” (Id.)
City argues that if the public property was not used with due care, the condition falls outside the definition of “dangerous condition.” City argues that Plaintiff did not use the roadway with due care because he was familiar with the roadway and the crosswalk, but chose to walk 20-30 feet outside the marked crosswalk. (City Fact 5, 6; Villegas Depo. at p.15; City COE, Ex. 21 [Pl.’s responses to City’s RFAs].)
In opposition, Plaintiff argues that he had a compelling reason not to use the marked crosswalk because cars traveling on Fawcett towards Lexham would not have seen him around the curve since view of the crosswalk is partially obstructed by a black iron rod fence. (Opp. at p.14.) However, there is no evidence to support Plaintiff’s assertions that the marked crosswalk was unsafe and that his course of action outside the marked crosswalk was a safer route.
As discussed above, both Plaintiff and Villegas were familiar with the roadway and the crosswalk. It is entirely reasonable for Villegas to have driven on Fawcett towards Lexham, anticipating slowing down while curving around the bend and anticipating pedestrians at the crosswalk—but not before where no crosswalk was designated. As stated in Villegas’ deposition, he saw Plaintiff on the sidewalk (and not at the crosswalk) and so he did not anticipate that Plaintiff would walk onto the street and into his lane while his car was driving towards the curve. (Villegas Depo. at pp.15-16.)
There are always at least two human variables in the occurrence of any vehicle v. pedestrian accident. Every person crossing every street at every crosswalk must exercise human judgment of whether they can cross the street before the oncoming traffic. Likewise, every driver must take care to observe pedestrians who enter crosswalks ahead of him, and slow down and stop to allow them to pass. Inevitably, someone will make a misjudgment. However, public entities do not function as insurance against the misjudgments of drivers or pedestrians. (See Biscotti v. Yuba City Unified School Dist.
Thus, the Court does not find that the opposing parties have a raised a triable issue of material fact regarding due care.
d. Conclusion regarding Dangerous Condition
Pursuant to CCP §437c(p)(2), a defendant or cross-defendant has met its burden of showing that a if it has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, that there is . Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.
Based on the above analysis, the Court finds that City has upheld its initial burden on summary adjudication regarding the lack of dangerous condition on public property. In opposition, neither Plaintiff nor Villegas have raised a triable issue of material fact. Accordingly, City is entitled to summary adjudication on the issues raised in the motion, and accordingly summary judgment on Plaintiff’s action.
In view of these rulings, the Court declines to address the City’s claim of design immunity.
2. Villegas’ Cross-Complaint
There can be no indemnity without liability. (Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1425.)
In light of the finding about regarding City’s liability on Plaintiff’s complaint, the Court finds that City has established that it is entitled to summary judgment on Villegas’ cross-complaint.
CONCLUSION AND ORDER
For the reasons stated above, City’s motion for summary judgment or, alternatively, for summary adjudication is granted as to Plaintiff’s Complaint and Villegas’ Cross-Complaint.
City shall provide notice of this order.
 At the time of the subject incident, both Plaintiff and Villegas were familiar with the roadway. Plaintiff testified that he visited his family often in the area. (Pl. Depo. at p.57.) Villegas testified that he lived near the site of the accident. (Villegas Depo. at p.26.)
 Plaintiff does not dispute that he was familiar with the area and knew there was a crosswalk. (Pl.’s Fact 5.) The opposition papers indicate he was crossing the street at an area that was not the crosswalk.
 Briefly, the Court notes that City argues that in the past 10 years, the only accident that occurred at the subject location was Plaintiff’s accident. (City Fact 31-32.) “The absence of prior similar accidents supports the inference that drivers exercising due care, such as by driving more slowly or taking other precautions … , would not have caused such an accident.” (Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 756.) Plaintiff/Villegas and City dispute whether City had notice of a dangerous condition based on City Council meeting, but the Court need not reach this issue.
The Court separately notes that where a driver’s negligence was the proximate cause of plaintiff’s injury, the plaintiff is required to show how the city’s installation of signs, painting of lines, etc. increased or intensified the risk of injury to pedestrians crossing at that location. (Thimon, supra, 44 Cal.App.5th at 759; see also Salas v. Dept. of Transp. (2011) 198 Cal.App.4th 1058, 1070 [stating that third party conduct unrelated to the condition of the property does not constitute a “dangerous condition” for which the public entity may be held liable; rather, the defect in the physical condition of the property must have some causal relationship to the third-party conduct that injured the plaintiff].)
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