This case was last updated from Los Angeles County Superior Courts on 06/15/2019 at 12:56:40 (UTC).

HEATHER LEHR ET AL VS JPMORGAN CHASE BANK ET AL

Case Summary

On 10/10/2017 HEATHER LEHR filed a Personal Injury - Motor Vehicle lawsuit against JPMORGAN CHASE BANK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DENNIS J. LANDIN, RALPH C. HOFER and JOEL L. LOFTON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8830

  • Filing Date:

    10/10/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DENNIS J. LANDIN

RALPH C. HOFER

JOEL L. LOFTON

 

Party Details

Plaintiffs and Petitioners

LEHR HEATHER

BRYANT FRANK

Defendants, Respondents and Cross Plaintiffs

FANG HSIU

LIU CHEN

AN MARINO THE CITY OF

JPMORGAN CHASE BANK

DOES 1 TO 30

SAN MARINO THE CITY OF

JPMORGAN CHASE BANK A NEW YORK

LIU HSIU FANG CHEN

JPMORGAN CHASE BANK N.A.

METROPOLITAN LIFE INSURANCE COMPANY-DOE 2

CBRE. INC. (DOE 1)

CBRE. INC. DOE 1

Defendant and Cross Defendant

LIU HSIU FANG CHEN

9 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CHASE BRIAN D. ESQ.

BISNAR CHASE TRIAL LAWYERS LLP

HILST STEVEN ROBERT-LY

CHASE BRIAN DOSTER ESQ.

Plaintiff and Defendant Attorneys

HILST STEVEN ROBERT-LY

D'ORO FRANK J. ESQ.

DUNBAR KEVIN T. ESQ.

DUNBAR & ASSOCIATES

WESIERSKI & ZUREK LLP

YEE KEVIN ROBERT

DUNBAR KEVIN TERRENCE ESQ.

EDWARDS KAMAU AYINDE

TYSON & MENDES

HARTSUYKER STRATMAN & WILLIAMS-ABREGO

HUBER GINA MARIE

TYSON ROBERT FRANCIS JR

JENKINS MICHAEL EDWIN

Defendant and Respondent Attorneys

D'ORO FRANK J. ESQ.

DUNBAR KEVIN T. ESQ.

Defendant and Cross Plaintiff Attorneys

DUNBAR & ASSOCIATES

WESIERSKI & ZUREK LLP

5 More Attorneys Available

 

Court Documents

Unknown

10/17/2017: Unknown

Demand for Jury Trial

11/3/2017: Demand for Jury Trial

Case Management Statement

1/26/2018: Case Management Statement

Summons

4/19/2018: Summons

Unknown

5/31/2018: Unknown

Request for Judicial Notice

6/20/2018: Request for Judicial Notice

Notice of Ruling

8/3/2018: Notice of Ruling

Answer

8/22/2018: Answer

Notice

12/19/2018: Notice

Declaration

2/26/2019: Declaration

Declaration

2/26/2019: Declaration

Minute Order

3/22/2019: Minute Order

Request for Judicial Notice

3/26/2019: Request for Judicial Notice

Opposition

4/8/2019: Opposition

Reply

4/12/2019: Reply

Request for Judicial Notice

4/17/2019: Request for Judicial Notice

Notice of Ruling

7/19/2018: Notice of Ruling

Case Management Statement

10/9/2018: Case Management Statement

176 More Documents Available

 

Docket Entries

  • 06/07/2019
  • Stipulation and Order (Stipulation and Protective Order); Filed by SAN MARINO, THE CITY OF (Defendant)

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  • 05/17/2019
  • at 09:00 AM in Department D; Hearing on Motion for Summary Judgment (/Adjudication filed on behalf of Defendant City of San Marino;) - Not Held - Advanced and Continued - by Court

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  • 05/17/2019
  • at 09:00 AM in Department D; Status Conference - Not Held - Advanced and Continued - by Court

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  • 05/17/2019
  • at 08:30 AM in Department D; Hearing on Motion for Summary Judgment (/Adjudication filed on behalf of Defendant City of San Marino;) - Not Held - Vacated by Court

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  • 05/14/2019
  • Notice of Ruling; Filed by HEATHER LEHR (Plaintiff); FRANK BRYANT (Plaintiff)

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  • 05/14/2019
  • Notice of Ruling; Filed by HEATHER LEHR (Plaintiff); FRANK BRYANT (Plaintiff)

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  • 05/10/2019
  • at 08:30 AM in Department D; Hearing on Motion to Compel Discovery (not "Further Discovery") (To Special Interrogs, Set Three Propounded to Defendant JPMorgan Chase Bank, N.A. filed on behalf of Plaintiffs) - Held - Motion Granted

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  • 05/10/2019
  • at 08:30 AM in Department D; Hearing on Motion to Compel Discovery (not "Further Discovery")

    Read MoreRead Less
  • 05/10/2019
  • at 08:30 AM in Department D; Hearing on Motion to Compel Further Discovery Responses - Held - Motion Granted

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  • 05/10/2019
  • at 08:30 AM in Department D; Hearing on Motion to Compel Further Discovery Responses (To Requests for Production of Documents, Set Two Propounded to CBRE, Inc. filed on behalf of Plaintiffs) - Held - Motion Granted

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285 More Docket Entries
  • 10/13/2017
  • Proof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 10/10/2017
  • Complaint

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  • 10/10/2017
  • COMPLAINT FOR DAMAGES 1. NEGLIGENCE ;ETC

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  • 10/10/2017
  • SUMMONS

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  • 10/10/2017
  • Civil Case Cover Sheet

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  • 10/10/2017
  • Summons (on Complaint)

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  • 10/10/2017
  • Complaint; Filed by HEATHER LEHR (Plaintiff); FRANK BRYANT (Plaintiff)

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  • 01/08/2016
  • Statement-Case Management; Filed by Attorney for Plaintiff

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  • 07/16/2015
  • Reply (TO PLTF'S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLTF'S COMPLAINT; MEMO OF POINTS AND AUTHORITIES ); Filed by Attorney for Defendant

    Read MoreRead Less
  • 07/16/2015
  • Reply; Filed by HSIU FANG CHEN LIU (Defendant)

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Tentative Rulings

Case Number: BC678830    Hearing Date: March 13, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 10

Date: 3/13/20

Case No: BC 678830 Trial Date: August 31, 2020

Case Name: Lehr, et al. v. JPMorgan Chase Bank, et al.

MOTION TO BIFURCATE

Moving Party: Defendant CBRE, Inc.

Responding Party: Plaintiffs Heather Lehr and Frank Bryant

RELIEF REQUESTED:

Order bifurcating trial on the issues of liability and damages.

SUMMARY OF FACTS:

Plaintiff Heather Lehr alleges that on April 4, 2017, she was standing on a sidewalk facing an Automated Teller Machine (“Subject ATM”) on Huntington Drive in San Marino when a vehicle driven by defendant Hsiu Fang Chen Liu hit and jumped the curb, drove onto the sidewalk and struck plaintiff, resulting in severe and debilitating injuries.

Plaintiff alleges that defendant JP Morgan Chase Bank negligently owned, designed, placed, monitored and controlled the Subject ATM, which was immediately adjacent to the subject sidewalk when Chase knew or should have known that it was dangerous to for the Subject ATM to be located near diagonal parking spaces on Huntington Drive, so that it was foreseeable vehicles would attempt to enter the diagonal parking spaces at high and dangerous speeds, and hit and jump the curb, drive onto the sidewalk and strike persons using the Subject ATM.

Plaintiff also alleges that her injuries were caused by a dangerous condition of public property resulting from the negligent design, evaluation, engineering, construction, management, or repair relating to the condition of defendant City of San Marino’s sidewalk and parking spaces.

Plaintiff’s spouse, plaintiff Frank Bryant, brings a cause of action for loss of consortium.

Defendant Chase has filed a cross-complaint against co-defendant Liu for motor vehicle negligence, contribution, indemnity and breach of contract.

Evidently the drivers’ name is actually “Lin,” not “Liu” and plaintiffs have filed an Amendment substituting the name of Hsiu Fang Chen Lin for Roe 1.

The file shows that moving defendant CBRE, Inc. was added to the action as Doe 1. CBRE represents that it is a global real estate services company and provides facilities management services to JPMorgan Chase Bank retail bank branches.

ANALYSIS:

Defendant CBRE, Inc. seeks an order bifurcating trial in this matter so that the issue of liability and damages will be heard in separate phases. CBRE argues that this is necessary so that CBRE’s liability can be decided prior to the introduction on the issue of damages.

CBRE argues that it will be prejudiced at trial if the issue of liability is decided alongside plaintiffs’ damages claim, since the evidence regarding damages is emotional charged, and will influence the jury’s decision on liability. CBRE also argues that judicial economy and efficiency would be served as there are a significant number of witnesses and experts whose testimony is irrelevant to the issue of liability, and would only be introduced during the damages phase, and bifurcation would also spare plaintiffs and their family members and friends from having to testify as to plaintiff Lehr’s injuries, unless liability were found.

CCP § 1048 provides that “(b) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial… of any separate issue..., preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”

CCP § 598 provides, in pertinent part:

“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order... that the trial of any issue or any part thereof shall precede the trial of any other issue or part thereof in the case…”

Section 598 was adopted in 1963 as the result of Judicial Council recommendations and “Its objective is avoidance of waste of time and money caused by unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff.” Trickey v. Superior Court (1967) 252 Cal.App.2d 650, 653, citation omitted.

Defendant CBRE also relies on Evidence Code § 320, which provides, “Except as otherwise provided by law, the court in its discretion shall regulate the order of proof.”

The determination of whether to bifurcate the trial of issues in a single action “is a matter within the discretion of the trial court, whose ruling will not be disturbed on appeal absent a manifest abuse of discretion.” Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (2nd Dist. 1987) 189 Cal.App.3d 1072, 1086 (noted to have been superseded by statute on another issue in Yang v. Peoples Benefit Ins. Co. (2007) 2007 U.S.Dist Lexis 41331), citing McArthur v. Schaffer (1943) 58 Cal.App.2d 724, 727.

California courts have recognized that bifurcation is proper where liability is a simple matter while damages requires testimony from multiple witnesses, or where only a small fraction of the evidence would be repeated, and the trial court had determined the ends of justice would be served by bifurcation. Trickey, supra, at 653; Kaiser Steel Corp. v. Westinghouse Elec. Corp. (2nd Dist., 1976) 55 Cal.App.3d 737, 745-746 (noted superseded by statute on other grounds in Barnett v. American-Cal Medical Services (2nd Dist. 1984) 156 Cal.App.3d 260).

The federal courts have developed more specific standards and burdens with respect to bifurcation under Federal Rule 42(b), which serves similar purposes as the California statute.

The federal courts have set forth the following factors to be considered in bifurcation determinations:

1) There will be little overlapping testimony and evidence between the two proceedings;

2) Where issues to be decided are complex and the factfinder is likely to become confused;

3) Where bifurcation will promote settlement; and

4) Where a single trial will cause unnecessary delay.

Rodin Properties-Shore Mall, N.V. v. Cushman & Wakefield, of Pennsylvania, Inc. (D.C. NJ 1999) 49 F.Supp.2d 709, 721.

The District Court in Rodin observed: “None of these factors are determinative. To the contrary, ‘a court must take into account the ‘overall equities’ of the case in ruling on a motion to bifurcate.’” Rodin, at 721, quotation citation omitted.

Practically speaking, bifurcation, at least in the personal injury context, is generally considered pro-defendant. A 1990 study with mock juries found juries less likely to find for a plaintiff on causation or liability when a trial was bifurcated. While 100% found for plaintiff in unitary trials, only 74.8% found for plaintiff when the proceeding was bifurcated. Bifurcation Unbound, (2000) 75 Wash.L.Rev. 705, 743.

In this case, moving party seems to argue that this is an appropriate case for bifurcation, where defendants “liability, if any, is tenuous” and the incident creates the possibility that a jury will unfairly compensate plaintiff out of sympathy, and where evidence of damages would be wasteful.

To the extent the argument seems to be that a finding of no liability here on the part of CBRE would avoid the need to put on damages evidence at all, this result is not the case, as the argument of this defendant has been all along that the accident and injuries were solely caused by the negligent operation of the vehicle by defendant Lin. Accordingly, there is only a small chance that a damages phase would be avoided altogether in this matter. Also, it is not clear what damages evidence would not be necessary to be heard if this defendant were to be found not liable, but other defendants were. The opposition indicates that there would be no savings of time or resources in the damages phase, as no defendant other than CBRE has given any indication they intend to retain or call a damages-related expert. It appears that bifurcation would save the time and testimony of only one witness.

The opposition also argues that the liability and damages issues in this case are interrelated, and require significant overlapping evidence, as causation must be considered to determine negligence, requiring evidence concerning the accident and injuries suffered, and that this is a case were the issues of apportionment of fault and causation amongst the various defendants requires consideration of liability and injuries at the same time. Plaintiff relies on Cook v. Superior Court (1971) 19 Cal.App.3d 832, in which the court reversed a bifurcation order in a legal malpractice case, where the trial court bifurcated the issues of whether there was liability for legal malpractice, and whether there was liability for medical malpractice in the underlying action. The court noted that these issues were closely intertwined, and also held that the order improperly tried part of an issue separately, as opposed to an entire issue, as authorized by CCP § 598.

While the issues here are not as intertwined as in Cook, they appear to be interrelated, given that there are multiple defendants, with potentially varying degrees of liability, if at all, making the bifurcation sought here difficult to implement, impractical, or simply ineffective to serve the purposes for which it is sought. The opposition also argues that not only will bifurcation not further judicial economy, the convenience of witnesses, or the ends of justice, but it would result in more time and litigation cost and expense, and require witnesses to appear in two phases, and impose burden on the court and jury. In short, efficiency will not be served by bifurcation.

This leaves the argument that bifurcation is necessary to avoid prejudice to defendant CBRE in this matter. The argument seems to be that this is like a gross disfigurement case, where there is some potential defendants will suffer undue sympathy prejudice from the amount of damages sought, or the severity of the injuries. See Miller v. New Jersey Transit Authority Rail Operations (D.C. N.J. 1995) 160 F.R.D. 37 (bifurcation order upheld where plaintiff lost three limbs when electrocuted after climbing onto an electrified train parked at a railroad station after he and several friends had visited various establishments and plaintiff apparently consumed a significant amount of alcohol at these establishments prior to climbing onto the train).

CBRE relies on Ballard v. Uribe (1986) 41 Cal.3d 564, in which the California Supreme Court noted that the issue of liability and damages had been bifurcated in that case but does not appear to have been called upon to determine if that bifurcation order had been appropriate. See Ballard, at 568-569. Ballard involved a lawsuit by a construction worker arising out of the worker’s use of an aerial manlift owned by defendant while engaged in construction of a freeway exchange. While plaintiff was sandblasting a bridge column, he and another employee were told to use the subject lift, unaware that its stabilizing cable had broken and been removed. During operation of the lift, plaintiff was tossed out of the basket being raised to the next bridge column, and fell approximately 35 feet to the grounds, suffering serious injuries as a result of the fall. Ballard, at 569-570.

CBRE also cites to Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, in which the court of appeal noted that the appeal was being taken from a products liability judgment entered against defendant “following a bifurcated trial on liability and damages.” Mendoza, at 292. In that case, the action arose out of an accident involving a golf cart manufactured by defendant, when the golf cart parking brake “allegedly spontaneously released, causing plaintiff David Mendoza (Mendoza) to suffer serious injuries, including a broken neck.” Mendoza, at 292, footnote omitted. Again, the court of appeal does not appear to have been called upon to determine to appropriateness of the bifurcation award and did not do so.

In any case, the argument here is that plaintiff Lehr has suffered significant, life-changing injuries, and it is expected she will rely on evidence that she will be essentially incapable of walking for the duration of her life, will never be able to work again, and suffers daily immobilizing pain, and will never be able to enjoy life in the way she did before the accident. CRBE argues that a jury could after hearing emotional and sensitive testimony could look past defendant’s liability to compensate plaintiff through sympathy.

Plaintiffs argue that a bifurcation order will not avoid discussion of the damages suffered because the presentation of the causation evidence and comparative fault will require discussion of the severity of the injuries.

Plaintiffs also argue that the parties will be required to voir dire the jury on both the liability and damages issues at the outset of trial. The argument is based on Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, in which the Second District affirmed a trial court’s denial of a request to voir dire the jury for cause regarding the second phase of a bifurcated trial after the jury had decided the first bifurcated issue. The Second District noted that no such procedure was recognized in California, and that “Once the jury is passed for cause and sworn, the time for voir dire and peremptory challenges is over.” Bly-Magee, at 324. The Second District held that to the extent that defendant in that case contended that the trial court had improperly limited jury voir dire to the issue presented in the first phase of the trial, defendant’s “delay in raising its concerns constituted a waiver of its right to complain now about the conduct or scope of voir dire.” Bly-Magee, at 325. Plaintiffs here will evidently not be making that mistake and will request that voir dire be conducted on all issues at the outset of the first phase trial. Again, the circumstances mitigate against any judicial efficiencies.

Plaintiffs also argues that the argument shortchanges the jury system, and that skilled advocacy can avoid such an effect, also pointing out that jury instructions, such as CACI 100, can be given, which includes the admonition, “You must decide what the facts are in this case. Do not let bias, sympathy, prejudice, or public opinion influence your verdict.” See also CACI 5000 (providing, in pertinent part, “You must not let bias, sympathy, prejudice, or public opinion influence your decision.”).

In conclusion, a bifurcation order in this matter will not save time, simplify matters for the jury or avoid the prejudice which this motion appears primarily intended to avoid. In addition, bifurcation imposes a clear burden on a jury and the court in the event two phases are necessary, which appears very likely here to at least one defendant, including the inconvenience of having to deal with two sets of procedures, closing arguments, jury instructions, and deliberations. This may be particularly burdensome to a jury here, which will already be hearing a particularly long civil case. The motion therefore is denied.

RULING:

Defendant CBRE, Inc’s Motion to Bifurcate Trial on the Issues of Liability and Damages:

The court notes that it has reluctantly considered the opposition papers, despite the failure of plaintiffs to submit to the court timely courtesy copies. See First Amended General Order, filed May 3, 2019 by the Superior Court of the State of California for the County of Los Angeles, and signed by Presiding Judge Kevin C. Brazile, requiring, that “a printed courtesy copy (along with proof of electronic submission) is required for the following documents… ii) Pleadings and motions (including attachments such as declarations and exhibits) of 26 pages or more; iii) Pleadings and motions that include points and authorities.” [First Amended General Order § 9 (b)(iii) and (iv)]. The order expressly states that, “Nothing in this General Order precludes a Judicial Officer from requesting a courtesy copy of additional documents.” [First Amended General Order § 9 (c)]. Department D has in place a written policy requesting courtesy paper copies lodged with Department D of “ALL REPLIES, OPPOSITIONS, AND OBJECTIONS, FOR THE MATTERS THE COURT HEARS ON FRIDAYS FOR ITS LAW AND MOTION CALENDAR.” The order further requires that courtesy paper copies, “MUST BE DELIVERED TO THE COURTROOM BY 4:30 P.M. THE SAME BUSINESS DAY THE DOCUMENT IS EFILED.” Plaintiffs have failed to comply with the General Order and Department Court Order Re Lodging of Courtesy Copies. The court may in the future refuse to consider papers e-filed and submitted without the required printed courtesy copies.

Motion is DENIED.

Case Number: BC678830    Hearing Date: February 28, 2020    Dept: BCD

TENTATIVE RULING

Calendar: 13

Date: 2/28/20

Case No: BC 678830 Trial Date: August 31, 2020

Case Name: Lehr, et al. v. JPMorgan Chase Bank, et al.

MOTION FOR PROTECTIVE ORDER

(CCP §2031.060)

Moving Party: Defendant CBRE, Inc.

Responding Party: Plaintiffs Heather Lehr and Frank Bryant

RELIEF REQUESTED:

Order precluding plaintiffs from propounding discovery requests and taking depositions pertaining to motor vehicle incidents and accidents involving Chase Bank branches or property, or policies, procedures, guidelines, and so forth, regarding prevention of motor vehicle incidents and accidents, including bollards or other physical barricades, that are beyond the five year period prior to the filing of Plaintiff’s complaint (i.e. October 10, 2012 to October 10, 2017), and that are not sufficiently limited to Chase walk-up ATMs located in Los Angeles County.

FACTUAL BACKGROUND:

Plaintiff Heather Lehr alleges that on April 4, 2017, she was standing on a sidewalk facing an Automated Teller Machine (“Subject ATM”) on Huntington Drive in San Marino when a vehicle driven by defendant Hsiu Fang Chen Liu hit and jumped the curb, drove onto the sidewalk and struck plaintiff, resulting in severe and debilitating injuries.

Plaintiff alleges that defendant JP Morgan Chase Bank negligently owned, designed, placed, monitored and controlled the Subject ATM, which was immediately adjacent to the subject sidewalk when Chase knew or should have known that it was dangerous to for the Subject ATM to be located near diagonal parking spaces on Huntington Drive, so that it was foreseeable vehicles would attempt to enter the diagonal parking spaces at high and dangerous speeds, and hit and jump the curb, drive onto the sidewalk and strike persons using the Subject ATM.

Plaintiff also alleges that her injuries were caused by a dangerous condition of public property resulting from the negligent design, evaluation, engineering, construction, management, or repair relating to the condition of defendant City of San Marino’s sidewalk and parking spaces.

Plaintiff’s spouse, plaintiff Frank Bryant, brings a cause of action for loss of consortium.

Defendant Chase has filed a cross-complaint against co-defendant Liu for motor vehicle negligence, contribution, indemnity and breach of contract.

Evidently the drivers’ name is actually “Lin,” not “Liu” and plaintiffs have filed an Amendment substituting the name of Hsiu Fang Chen Lin for Roe 1.

The file shows that moving defendant CBRE, Inc. was added to the action as Doe 1. CBRE represents that it is a global real estate services company and provides facilities management services to JPMorgan Chase Bank retail bank branches.

ANALYSIS:

Defendant CBRE seeks an order from this court precluding plaintiffs from propounding discovery which seeks information beyond the five-year period prior to the filing of the complaint, and which is not limited to Chase walk-up ATMs in Los Angeles County.

In connection with previous discovery motions brought by plaintiff to compel further responses from moving defendant CBRE, the court has ordered this party to serve further responses “limited to documents concerning incidents or accidents, as defined above, occurring in the last five years at Chase ATMs located in Los Angeles County.” [Minute Order 4/19/19]. The Minute Order further states, “The court defines ‘incident’ as a car jumping the curb at an ATM without any personal injuries, while the Court defines ‘accident’ as an event whereby a car jumps the curb causing physical injury to a bystander or customer using the ATM.”

CCP § 2017.020 (a) provides:

(a) The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

As an initial matter, the meet and confer correspondence attached to the motion does not mention any motion for protective order, but is directed at specific discovery responses provided by CBRE, and meet and confer efforts with respect to whether plaintiffs will be filing a motion to compel further responses to that discovery. [See Exs. K-N]. The opposition has objected on this ground and argues that there should have been some meet and confer on this specific motion before it was filed. The reply argues that the letters discuss the scope of discovery, and CBRE’s position with respect to the court’s previous orders limiting discovery, but it does not appear that there is any evidence that the potential of bringing this motion was ever discussed. The motion could be denied on this ground, but the court elects not to do so.

The motion is not directed at any particular set of discovery, as evidently CBRE has served responses to the discovery, but seeks a protective order to govern the conduct of further discovery. The opposition argues that this is improper, and it is plaintiffs’ obligation and right to bring appropriate motions to compel, so that this motion is not only unnecessary, but circumvents plaintiffs’ rights to bring motions to compel before the court.

It does appear that the motion is in an awkward posture, as it essentially seeks to have this court issue an advisory ruling on any potential motion to compel further responses to the most recent set of discovery, without providing an appropriate separate statement directed at specific discovery.

The argument is that such a global order would streamline the process and avoid further disputes about the scope of discovery here.

This motion does not appear appropriately directed at specific discovery, and could be denied on this ground, but the court elects not to do so.

With respect to protective orders generally, the burden of showing good cause is ordinarily on the party seeking the protective order. Beverly Hills Nat. Bank & Trust Co. v. Superior Court (1961, 2nd Dist.) 195 Cal.App. 2d 861, 866-867. The granting of a protective order is within the discretion of the trial court. Id. When the record shows facts on which the trial court exercised its discretion, this exercise will not be disturbed on appeal. Foster v. Gillette Co. (1979) 100 Cal.App.3d 569, 578.

The protective order is sought to prohibit discovery beyond the five-year window, related to areas of the Chase branches which are not walk up ATMs, and evidently requests for production of documents within Orange County, San Diego County, Ventura County, and Santa Barbara County. Defendant argues that discovery beyond ATM configurations like the subject San Marino Chase bank is overbroad and irrelevant to the issues in the case, which concerns an isolated incident, and that these limitations insure that accidents explored were similar to, or occurred under substantially the same circumstances, as the accident at issue in this lawsuit. There is also an argument that the information beyond the limitations is a great burden on CBRE, as information regarding incidents and accidents as defined by the court cannot be obtained through means other than manual evaluation, and that there are approximately the following number of work orders for the following counties during the five-year period:

Los Angeles—58,064

Orange and San Diego—47,327

Santa Barbara—10,985

[Martin Decl. ¶¶ 6-12].

The Martin Declaration then concludes that reviewing these work orders would be burdensome and oppressive. [Martin Decl. ¶ 13]. It is not explained how much time or personnel it would take to make the additional review, and evidently it has been possible to review the Los Angeles work orders and respond to discovery according to this court’s previous order. See, eg. Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318 (demand held “oppressive” where declarations showed over 13,000 claims would have to be reviewed, requiring 5 adjusters working full time for six weeks each.). Weil & Brown advise practitioners:

“Avoid raising the ‘burdensome and oppressive’ objection unless the facts are truly unusual (e.g very fragile property which could be damaged by any movement, touching, etc.). If you are going to object in such a case, state the reasons for your objection and offer to permit whatever inspection can be allowed under the circumstances.” (Emphasis in the original).

Weil & Brown, Civ. Proc. Before Trial (The Rutter Group, 2010 rev) § 8:1476.

This circumstance makes it difficult to evaluate the motion.

The opposition argues that discovery has been produced which shows two branches, in Manhattan Beach and West Covina, where ATMs have been hit by motor vehicles, but that these were not identified in the discovery provided by Chase, even though they occurred. [Hilst Decl. ¶ 23]. CBRE witnesses produced for deposition on these issues have testified that there have been accidents where motor vehicles have struck areas at or near an ATM, and that in response to these accidents both Chase and CBRE have requested that bollards be installed, and that employees have identified instances in which motor vehicles have stricken Chase branches in Los Angeles, Orange, Ventura and San Diego Counties, amounting to approximately 20 incidents. It does appear from the deposition transcripts that accidents are identified by witnesses responsible for safety, including two in Los Angeles County, in Bell and Agoura Hills, not previously identified in documents. [See Exs. 15-28; Thoma Depo, p. 58; Martin Depo. pp. 136-138; Raburn Depo. pp. 105-112]. The witnesses were not able to

provide details but identified these other counties. It would appear, on a more request-by-request basis, that the court may want further information concerning whether follow-up discovery on identified incidents should be permitted, even outside the county and time frame, with current personnel being aware of them. These new developments may also warrant a request for broader documents from other nearby counties, particularly if there is no further showing by defendant of an undue burden.

Therefore, the court denies the motion as premature, and not directed at specific discovery, but encourage the parties to meet and confer to resolve these issues in an appropriate manner before seeking further court intervention. The court has all along taken the position that broader discovery could be sought if the need for it arose during the discovery process. Needless to say, it is a bit alarming that witnesses are identifying accidents which were not revealed from the documents produced.

Sanctions

Monetary sanctions are sought in the opposition for the expense of opposing the motion, particularly in light of the failure to meet and confer.

Under CCP 2017.020 (b):

“(b) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

It is unfortunate that the parties are unable to work out the appropriate scope of discovery in this instance, even with the previous orders of the court, but it also appears that circumstances during discovery may have arisen warranting a broadening of the scope of discovery, particularly follow up discovery to information disclosed by witness deponents. The parties appear substantially justified in taking their respective positions. Hence, no sanctions are awarded.

RULING:

Defendant CBRE, Inc.’s Motion for Protective Order is DENIED. The parties have not met and conferred with respect to a motion for protective order, the motion is not directed to any specific discovery, and the court is not inclined to make an advisory ruling before motions to compel further responses to specific discovery have been pursued, after appropriate meet and confer has been conducted, and appropriate separate statements have been filed.

The court is concerned that previous restrictions may not be appropriate given the information revealed by witnesses during deposition, and the expected specificity of follow-up discovery on the incidents revealed in that discovery, which instances do not appear particularly numerous. With respect to discovery seeking broad production of documents concerning incidents or accidents in nearby Southern California counties, the court is concerned that the Martin Declaration does not explain what time or resources such discovery would entail sufficient to support a burdensomeness argument.

Monetary sanctions sought in the opposition are DENIED. The court finds that parties were substantially justified in taking their respective positions in this dispute.

Case Number: BC678830    Hearing Date: February 07, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 13

Case Number: BC 678830

Date: 2/7/20 Trial date: April 20, 2020

Case Name: Lehr, et al. v. JP Morgan Chase Bank, et al.

MOTION FOR SUMMARY JUDGMENT

(OR, in the Alternative, Summary Adjudication)

[CCP § 437c; CRC 3.1350 et seq.]

Moving Party: Defendant City of San Marino

Responding Party: Plaintiff Heather Lehr

Relief Requested:

Summary judgment in favor of defendant City of San Marino

In the alternative, summary adjudication of second, fourth causes of action of complaint and/or cross-complaint of Lin

Causes of Action from Complaint

1) Negligence v. Chase

2) Dangerous Condition of Public Property v. City

3) Motor Vehicle Negligence v. Liu

4) Loss of Consortium v. All Defendants

SUMMARY OF COMPLAINT:

Plaintiff Heather Lehr alleges that on April 4, 2017, she was standing on a sidewalk facing an Automated Teller Machine (“subject ATM”) on Huntington Drive in San Marino when a vehicle driven by defendant Hsiu Fang Chen Liu hit and jumped the curb, drove onto the sidewalk and struck plaintiff, resulting in severe and debilitating injuries.

Plaintiff alleges that defendant JP Morgan Chase Bank negligently owned, designed, placed, monitored and controlled the subject ATM, which was immediately adjacent to the subject sidewalk when Chase knew or should have known that it was dangerous for the subject ATM to be located near diagonal parking spaces on Huntington Drive, so that it was foreseeable vehicles would attempt to enter the diagonal parking spaces at high and dangerous speeds, and hit and jump the curb, drive onto the sidewalk, and strike persons using the subject ATM.

Plaintiff also alleges that her injuries were caused by a dangerous condition of public property resulting from the negligent design, evaluation, engineering, construction, management, or repair relating to the condition of defendant City of San Marino’s sidewalk and parking spaces.

Plaintiff’s spouse, plaintiff Frank Bryant, brings a cause of action for loss of consortium.

Defendant Chase has filed a cross-complaint against co-defendant Liu for motor vehicle negligence, contribution, indemnity and breach of contract.

Evidently the driver’s name is actually “Lin,” not “Liu” and plaintiffs have filed an Amendment substituting the name of Hsiu Fang Chen Lin for Roe 1.

Lin has filed a cross-complaint for indemnity and contribution against the City and JP Morgan Chase Bank.

ANALYSIS:

CCP § 437c (p): Burdens of Proof

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Defendant the City here seeks to establish that plaintiffs will be unable to establish an essential element of their dangerous condition of public property claim that the public entity had notice of the alleged dangerous condition, or that defendant will be able to establish its complete affirmative defense of design immunity.

Issue 1: Lehr’s Second Cause of Action for Dangerous Condition of Public Property Under Government Code Section 835 has no merit because the City was not on notice of any alleged dangerous condition of the sidewalk, parking stalls, or roadway before the subject accident

Defendant argues that the City cannot be responsible for the alleged dangerous condition because it was not on notice of any alleged danger from the sidewalk, parking stalls or roadway before the subject accident.

Government Code § 835 provides:

“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

(Emphasis added).

Under the Government Code § 853.2 (a) actual notice means the public entity “had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.”

Government Code section 835.2(b) provides, with respect to constructive notice:

(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 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. On the issue of due care, admissible evidence includes but is not limited to evidence as to:

(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.

(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.”

Defendant the City submits evidence that the sidewalk at the location on Huntington Drive in front of the subject JP Morgan Chase Bank has been there since at least 1952, the diagonal parking spaces on Huntington Drive in front of the subject bank have been there since at least 1990, and the subject ATM has been at that location since at least 1992. [UMF No. 9-11]. Defendant also submits evidence showing that there have been no prior complaints about the angle of the parking spaces causing a car to drive onto the sidewalk, or complaints about safety concerns that the placement of the ATM exposed people using the ATM to the danger of cars driving upon the sidewalk. [UMF Nos. 12, 13, and evidence cited]. The City Planning and Building Director and Custodian of Records, Aldo Cervantes, as well as the Parks and Public Works Director and Custodian of Records, Michael Thorne, both indicate that City records from 1950 to the present have been reviewed, and there has been one government claim filed with the City with respect to an accident or complaint involving the angled parking spaces on Huntington Drive causing a car to go onto the sidewalk, the claim of plaintiff Lehr in this action. No other reports or claims were found. [Cervantes Decl. ¶ 9; Thorne Decl. ¶ 8]. There were also no other reports or claims, other than the complaint of Lehr, about the placement of ATMs exposing people to a danger of cars driving onto the sidewalk. [Cervantes Decl. ¶ 10; Thorne Decl. ¶ 9].

The City also submits evidence that between 2008 and April 2017, there were only three collisions that occurred between San Marino Avenue and Ridgeway Road on Huntington Drive, including the subject accident, with the other two collisions not involving cars driving upon the sidewalks, but backing up. [UMF Nos. 28-31]. The City submits evidence that the daily traffic volume is quite heavy, and that the subject accident was the first time a vehicle had struck pedestrians while on the sidewalk. [UMF Nos. 30-31, 39-41, and evidence cited].

The City argues that this absence of prior incidents shows that the alleged risk of injury from the condition was not foreseeable, and that the City had no actual or constructive knowledge of the dangerousness of the condition.

The City argues that plaintiffs here are attempting to attribute liability to the City by alleging that it was foreseeable that someone would negligently operate a vehicle so that it would jump the curb and strike a pedestrian on the sidewalk using an ATM, but that the City is not required to protect against such negligence.

The City relies on Shipley v. City of Arroyo Grande (1942) 92 Cal.App.2d 748, in which the Second District affirmed the trial court’s order sustaining the demurrer of a City to an amended complaint without leave to amend, where plaintiff alleged that she suffered personal injuries as a result of being struck by an automobile owned and operated by a motorist who apparently lost control of her vehicle, which then proceeded over and across a curb and onto the sidewalk, crushing plaintiff, a pedestrian, against an adjacent building.

The Second District analyzed the amended complaint as follows:

“The liability of a city for injuries to persons or property while lawfully on its public streets arises only in case such injuries result from the dangerous or defective condition of such streets. (Stats. 1923, supra; Hanson v. City of Los Angeles, 63 Cal.App.2d 426, 428 [147 P.2d 109]; Miller v. City of Palo Alto, 208 Cal. 74, 75 [280 P. 108].)

While the amended complaint alleges that “by reason of the ... dangerous and defective condition of said street ... plaintiff was struck,” the pleading proceeds to recite that the driver's “car did fail to halt at the curb of the sidewalk ... but continued on and over said curb and sidewalk to strike ... the plaintiff.” In her brief appellant says that “here there was at least a nominal curb to delineate the sidewalk from the street.” Not even a slope of the terrain is *750 alleged whereby a moving vehicle might accidentally proceed onto the sidewalk. The only attempt to allege a defective condition is that, at the point where the automobile went upon the sidewalk “the curb separating that portion of Branch street used for vehicular traffic from the portion ... used for pedestrian traffic ... did not at any time herein mentioned exceed two inches in height.” The pleading is therefore devoid of a statement of facts from which it may reasonably be inferred that a “dangerous or defective condition” existed on respondent's street.

It is a fact of universal knowledge that an automobile in the absence of its driver's negligence may be parked against a 2-inch curb or even in front of a painted line. That a motorist would drive upon a low curb does not render it defective or dangerous. It is only the carelessly driven car that creates the peril. Therefore, no action against a city may be stated when a negligent operator of an automobile propels it against a person lawfully on the street. The Statute of 1923, supra, fixing liability upon municipalities for injuries arising from the defective condition of a street meant just that and no more. In Campbell v. City of Santa Monica, 51 Cal.App.2d 626, 627 [125 P.2d 561], the plaintiff was struck by an automobile on the Promenade, a sidewalk created for pedestrians. Where no signs or barriers inhibited motor cars from using it or to warn pedestrians of the presence of vehicles, this court held that even though a city prohibit a negligent use of its sidewalks its failure to enforce its prohibitory ordinance imposes no liability. The Public Liability Act was not ordained for the purpose of protecting those who go upon city streets but only those who suffer by reason of a “dangerous or defective” condition there. If young Campbell could not recover where the city authorized some vehicles to drive on a sidewalk why should appellant herein be entitled to recover where no motorist was authorized to go upon a sidewalk? Certainly, her right of recovery could not arise from the presence of a 2-inch curb when the Santa Monica sidewalk had no curb or barrier at all. A city is not liable for injuries caused by motor vehicles merely because it may appear that its streets and curbs which are in no sense dangerous for careful use could possibly be made secure against peril by a more elaborate construction or by installing one of a simpler type (Belcher v. San Francisco, 69 Cal.App.2d 457, 463 [158 P.2d 996]). In Storen v. Chicago, 373 Ill. 530 [27 N.E.2d 53], the city was not liable where an automobile ran onto a sidewalk *751 at a point where the curb had been cut away. It was not a defective construction nor was it in any way dangerous for the purpose to be served.

In the instant case the harm was caused not by the condition of the curb but by the negligent operation of a motor vehicle by a third party. Liability of a city may not be created by the conduct of a motorist who disregards the law or negligently operates his car to the detriment of others. Therefore, since liability cannot be predicated upon the facts established by her pleading, an amendment thereof would be idle.’

Shipley, at 750-751.

The argument is that the plaintiffs similarly here attempt to impose liability on the City for the manner in which Lin operated her vehicle, which was not foreseeable. The City argues that plaintiffs are unable to establish that the City was on notice, actual or constructive, of the alleged dangerous condition, entitling the City to summary judgment on Lehr’s cause of action.

Plaintiffs in opposition do not dispute any of the evidence submitted by the City. Plaintiffs argue that the lack of prior accidents or the negligence of Lin do not relieve the City of liability.

Plaintiffs argue that defendant’s reliance on Shipley is misplaced, as the case included insufficient allegations concerning a physical condition creating a dangerous condition of public property, and that the 1942 decision has been since abrogated by more recent California cases.

It appears that Shipley was not a case which dealt with the issue of notice, which is the issue the City has chosen to address here, and that more recent cases reject arguments that a public entity cannot be held responsible for a dangerous physical condition of public property on the ground the immediate cause of the injury was the negligent operation of a vehicle:

“A public entity may be liable for a dangerous condition of public property even where the immediate cause of a plaintiff's injury is a third party's negligent or illegal act (like Urzua's grossly negligent driving) if some physical characteristic of the property exposes its users to increased danger from third party negligence or criminality. (Bonanno v. Central Contra Costa Transit Authority, supra, 30 Cal.4th at p. 152.) But it is insufficient to show only harmful third party conduct, like the conduct of a motorist. “ ‘[T]hird party conduct by itself, unrelated to the condition of the property, does not constitute a “dangerous condition” for which a public entity may be held liable.’ ” (Zelig v. County of Los Angeles, supra, at p. 1134.) There must be a defect in the physical condition of the property and that defect must have some causal relationship to the third party conduct that injures the plaintiff. (Id. at pp. 1135–1140.) “[P]ublic liability lies under [Government Code] section 835 only when a feature of the public property has ‘increased or intensified’ the danger to users from third party conduct.” (Bonanno, supra, at p. 155.)

Cerna v. City of Oakland (2008) 161 Cal. App. 4th 1340, (italics in the original).

Plaintiffs rely on Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, in which the court of appeal held that a jury had properly found that an elementary school parking lot, once used as a bus loading zone, was a dangerous condition for which the school district was liable when a car driven by a parent picking up her child after school jumped the curb at the lot and struck and injured children.

The operative pleadings in that case, which had evidently survived summary judgment, did not provide significant detail:

“The Constantinescu complaint stated, in pertinent part, “... District ... [was] negligent in controlling and/or regulating traffic ... on the grounds of Ladera School, so as to create or permit the creation of a *1471 dangerous condition at the school. ... As a result of said failure ... Constantinescu ... was struck by an automobile ... and ... suffered ... injuries.”

The second amended Altreche complaint states, in pertinent part, that Ladera School “was in a dangerous condition that created unreasonable risk of the type of collision ... described ... even when the property was used with due care and in a manner that was reasonably foreseeable in that ... Defendants had a duty to avoid and preclude dangerous and defective conditions of public property ... and ... breached said duty by carelessly ... using, managing, ... designing, ... supervising, ... marking [and] controlling ... parking areas of the Ladera Elementary School, all of which ... proximately created a dangerous and defective condition of traffic congestion, unsafe traffic control, and no effective separation or barrier between student pedestrians and vehicles, which ... proximately caused the ... injuries ... to plaintiffs.”

Constantinescu, at 1470-1471.

Plaintiffs also rely on Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, in which the California Supreme Court affirmed judgment entered on a jury verdict finding that defendant State had maintained a dangerous condition of public property by failing to construct median barriers on a roadway. The Court addressed a situation involving current subdivision (b) of the statute, reasoning as follows:

‘In analyzing the question of the state's liability, we begin with the provisions of section 835 of the Government Code, one of the principal sections of the comprehensive California Tort Claims Act dealing with governmental liability for "Dangerous Conditions of Public Property." (See generally Gov. Code, § 830 et seq.) Generally speaking, under  [*716]  section 835 2 a public entity is liable for an injury if the plaintiff establishes: (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 under section 835.2 3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." (Italics added.)

As the emphasized language indicates, section 835 specifically provides that when a public entity has actual or constructive notice of a dangerous condition, the entity's liability may be predicated on its failure to take protective measures to safeguard the public from dangers that may not necessarily be of the entity's own creation. This reading of section 835 is confirmed by reference to section 830, subdivision (b),  [*717]  which specifically defines the "protect against" language of section 835, subdivision (b) to include "providing safeguards against a dangerous condition." 4 Thus, the language of the applicable statutes refutes the state's argument that it is under no "duty" to protect the public against

dangers that are not created by physical defects in public property. (See generally Van Alstyne, Cal. Government Tort Liability (Cont. Ed. Bar 1964) §§ 6.21, 6.26, pp. 204-205, 211.)

Ducey, at 714-716, footnotes omitted, italics in original

Plaintiffs also cite Baldwin v. State of California (1972 6 Cal.3d 424, 438, which the Ducey Court discussed as follows:

“This court's landmark case of Baldwin v. State of California (1972) 6 Cal. 3d 424 [99 Cal. Rptr. 145, 491, P.2d 1121] is directly in point. In Baldwin, the plaintiff was injured while attempting to make a left-hand turn on a heavily traveled four-lane highway; no separate left-hand turn lane had been provided, and while waiting to make the turn the plaintiff was rear-ended and pushed into on-coming traffic. The plaintiff in Baldwin sued both the driver who had rear-ended his car and the state; as in the instant case, in support of the claim against the state plaintiff introduced evidence of numerous similar accidents that had previously occurred at the same site. Plaintiff also adduced the testimony of highway safety experts as to the availability of safety measures, e.g., prohibiting left-hand turns or constructing an overpass or a separate left-hand turn lane, which the state could have implemented to protect against the "dangerous condition" created by the existing traffic conditions. Despite the fact that plaintiff's injury was not precipitated by a pothole or other "physical defect" in the public roadway, our court held that plaintiff's evidence would "amply support a finding that the intersection represented a dangerous condition" ( id., at p. 428) and that the state could be held liable for its failure to take reasonable steps to protect against such danger. In similar fashion, numerous Court of Appeal decisions decided over the past two decades confirm the conclusion that a public entity's liability under section 835 may be predicated upon a failure of the entity to provide adequate safeguards against a dangerous condition of which the entity had actual or constructive notice. (See, e.g., Chavez v. Merced (1964) 229 Cal. App. 2d 387, 394-397 [40 Cal. Rptr. 334] (failure to  [*718]  warn of danger from fallen utility line); Bakity v. County of Riverside (1970) 12 Cal. App. 3d 24, 30 [90 Cal. Rptr. 541] (failure to protect against obstructed view caused by trees on adjacent private property); Briggs v. State of California (1971) 14 Cal. App. 3d 489 [92 Cal. Rptr. 433] (failure to warn of mudslides from adjacent private property); Vedder v. County of Imperial (1974) 36 Cal. App. 3d 654, 658-660 [111 Cal. Rptr. 728] (failure to provide protective devices against fire danger); Slapin v. Los Angeles International Airport (1976) 65 Cal. App. 3d 484 [135 Cal. Rptr. 296] (failure to provide adequate lighting for safety).)”

Ducey, at 716-717.

Plaintiffs also rely on Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, in which the Second District reversed the trial court’s sustaining of a demurrer without leave to amend in favor of defendant public entities, where the complaint had alleged that plaintiffs were injured while sleeping on a beach when they were struck by a vehicle. The allegations there was that the parking lot had no fence or barrier between the highway and the beach, and that defendants knew that other vehicles had been gaining access to the subject portion of the beach and racing on the beach and others had been injured by such activity. The Second District found this sufficient to withstand demurrer, as plaintiffs had alleged “that a condition of the property itself, i.e., the failure to erect a barrier,” was a proximate cause of the injuries. Swaner, at 814. The Second District in Swaner cautioned:

“In making this disposition, we reiterate the position expressed herein that appellants must bear the burden of proving their allegations concerning the prior knowledge of the defendant public entities regarding the prior use of [*815] this particular beach and parking lot by third persons improperly

using vehicles on this beach which caused injuries to others. In the absence of such a showing by appellants, respondents would be entitled to a summary judgment pursuant to Code of Civil Procedure section 437c.”

Swaner, at 814-815.

It appears that the argument by plaintiffs here is not so much that the City had no actual or constructive knowledge of the conditions of the public property here, the sidewalk and parking space configuration, and possibility of a car jumping the curb, because under Swaner, it would appear that the absence of prior knowledge of improper use of vehicles would be an effective way to show lack of such knowledge. The argument instead appears to be primarily that the City did not address in its motion plaintiffs’ arguments that the City itself or its employees created the alleged dangerous condition by approving the addition to the sidewalk area of angled parking spaces, and by afterward failing to erect barriers to protect users of the ATM when it was installed so close to the parking area. As set forth above, Government Code § 835 provides liability for injury caused by a dangerous condition of public property where the public entity had actual or constructive knowledge, or “(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition.”

Plaintiffs submit the declaration of an expert, a licensed civil engineer, Brad Avrit, regarding the safety of the public property. In connection with the notice issue, the Avrit Declaration states that he conducted a scene inspection, which showed there were marks from vehicles contacting the top of the curb approximately 9 feet from the subject ATM, demonstrating vehicles were making contract with the curb, indicating a likelihood that a vehicle would strike the curb. [Avrit Declaration ¶ 14]. He also opines that the sidewalk inspections were insufficient, as they did not include any determination whether abutting or adjacent property, which would include the subject ATM, increased the risk of injury to users, so was not an adequate inspection protocol or protocol system. [Avrit Decl. ¶ 27]. As set forth above, under Government Code §835.2(b), constructive notice can be shown where “the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:…(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.” This testimony, if credited by the trier of fact, could support a finding of constructive notice.

In any case, the Avrit Declaration also submits evidence raising triable issues of material fact with respect to whether the dangerous condition was created by the City itself or was of such a nature that foreseeable harm gave rise to a duty to protect against harm, as in the case law relied upon by plaintiffs. Specifically, the Avrit Declaration describes the dangerous condition as follows:

“The subject parking spaces as they existed on the date of the subject accident constituted a dangerous condition of public property. The configuration of the parking spaces created a situation where a vehicle parking in the spaces must travel head-first directly at the sidewalk. The configuration of the parking spaces necessitates a driver entering the spaces from Huntington Drive to turn right to enter the spaces from a roadway with a speed limit of 40 mph. There is little room for error in this configuration, and there are no barriers to prevent a vehicle from hitting the curb and going upon the sidewalk. When a vehicle is entering head in diagonal parking spaces next to a sidewalk (as was the case in the subject accident) as opposed to entering parking spaces parallel to a curb, there is greater likelihood that if there is driver error, such as the misapplication of the accelerator, then a vehicle will go upon the sidewalk in the vicinity of pedestrians on the sidewalk. The lack of barriers at or near the parking spaces constituted a dangerous condition which created a substantial risk of injury to persons on the

sidewalk, especially those standing on the sidewalk using the ATM. The use of diagonal angle head in parking spaces at the area of the subject accident were not appropriate.”

[Avrit Decl. ¶ 15}.

The Avrit declaration also describes that incidence of motor vehicle accidents when errant vehicles contact commercial buildings. [Avrit Decl. ¶ 13].

Avrit also testifies to his opinion that the City created the dangerous condition:

“25. Based on the documents I have reviewed and the work that I have performed, it is my opinion that the City of San Marino created the dangerous condition of the parking spaces when the City Counsel approved them and when they were installed in 1990 without any barriers at the parking spaces or sidewalk.”

26. The City of San Marino also created the dangerous condition of the sidewalk when it approved and installed the parking spaces and approved the location of the ATM when it issued a building permit.”

[Avrit Decl. ¶¶ 25, 26].

This is sufficient to raise triable issues of material fact with respect to whether a dangerous condition can be established, either directly or pursuant to constructive notice, giving rise to a factual foreseeability determination. The motion accordingly is denied.

Issue 2: Lehr’s Second Cause of Action for Dangerous Condition of Public Property Under Government Code Section 835 has no merit because of the doctrine of design immunity.

The City then argues that Government Code § 830.6 provides a complete defense to a dangerous condition cause of action, the defense of design immunity.

Government Code § 830.6 provides:

“Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.”

Design immunity is considered an affirmative defense to liability for the dangerous condition of public property. Compton v. City of Santee (1993) 12 Cal.App.4th 591. A public entity establishes design immunity as a defense by showing:

1) a causal relationship between the design and the accident;

2) the discretionary approval of the plan prior to construction; and

3) substantial evidence supporting the reasonableness of the design.

Compton at 595.

The elements of design immunity are issues of law for the court. Alvarez v. State (1999) 79 Cal.App.4th 720, 727-728. The burden is on the public entity to prove each essential element of the defense of design immunity. Anderson v. City of Thousand Oaks (1976, 2nd Dist) 65 Cal.App.3d 789.

Defendant the City submits a showing that the complaint here alleges that it was dangerous for the ATM to be located near diagonal parking spaces and the accident, so that there is a causal relationship between the condition of the subject sidewalk and parking spaces and the accident, so that the first element is met. [UMF No. 46, and evidence cited].

With respect to the second element, discretionary approval of the plan, according to the Second District authority relied upon in the moving papers: “A detailed plan, drawn up by a competent engineering firm, and approved by a City engineer in exercise of his or her discretionary authority, is persuasive evidence of the element of approval.” Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940, citation omitted.

Defendant the City here relies on City of San Marino Resolutions, purportedly approving the sidewalk construction in 1953, and a Resolution approving angled parking in May 1990. [UMF Nos. 47, 48, and evidence cited; Exs. C. D]. As argued in the opposition, these do not appear to be detailed plans, drawn up by a competent engineering firm, and there is no testimony or evidence showing that any such plans were approved by a City engineer. The separate statement refers to the Miller Declaration, paragraph 5, which is the declaration of a retained expert, which merely states the expert based his review on the Resolution documents, and states that the improvements are in compliance with the original as built plans and in substantial compliance “with the plans that were approved by qualified engineers with authority to design roadways for the City of San Marino.” [Miller Decl. ¶ 7]. Miller does not directly state there was such approval obtained and would in any case have no personal knowledge concerning such facts.

The opposition also points out that San Marino Municipal Code 15.07.08 provides:

“The City Council may designate by resolution, which may be amended from time to time, any street or portion thereof upon which angle parking shall be permitted. Before the City Council establishes such designation, it shall receive a recommendation from the Police Chief and City Engineer.”

[Ex. 38].

The opposition submits deposition testimony of the City’s expert witness, Rock Miller, the Public Works Director, Thorne, and the City’s discovery responses, which concede that design approval would be based on recommendations of the Chief of Police or the City Engineer, that design plans would be approved by the City Engineer as opposed to the City Council, that the resolutions relied upon in the moving papers are not design plans, and that the City is unable to admit or deny that it in fact has the design plans. [Additional Facts Nos. 4-14, and evidence cited]. Plaintiffs accordingly argue that the City has failed to meet its burden to establish the second element of design immunity.

The reply does not address this issue of design immunity but focuses on lack of notice. The motion accordingly is denied on the ground the City has failed to meet its burden of establishing discretionary approval of the subject plans, an essential element of design immunity.

Issue 3: Bryant’s Fourth Cause of Action for Loss of Consortium has not merit because it is dependent on Lehr’s causes of action.

Issue 4: The Cross-Complaint of Lin has no merit because the causes of action for Indemnity and Contribution against the City are dependent on the Second Cause of Action for Dangerous Condition of Public Property and the Fourth Cause of Action for Loss of Consortium.

Defendant the City argues that since it is entitled to summary adjudication of the second cause of action for dangerous condition of public property, it is also entitled to summary adjudication of the loss of consortium

cause of action brought by the spouse, and of Lin’s cross-complaint for indemnity and contribution. Since summary adjudication of the second cause of action is denied, the motion as to these issues also is denied.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Defendant the City of San Marino’s Motion for Summary Judgment/Adjudication is DENIED.

With respect to the issue of actual or constructive notice of the alleged dangerous condition, plaintiffs have raised triable issues of material fact with respect to whether the alleged dangerous condition, consisting of the physical configuration of the sidewalk, parking spaces and location of the subject ATM, could reasonably have placed the City on notice of a foreseeable risk to pedestrians in the area, giving rise to a duty to protect from that risk. Specifically, plaintiffs’ expert submits evidence showing that the scene exhibited marks from vehicles contacting the top of the curb approximately 9 feet from the subject ATM, demonstrating vehicles were making contract with the curb, indicating a likelihood that a vehicle would strike the curb, and also evidence in support of his expert opinion that the inspection performed by the City did not include consideration of adjacent property, including the subject ATM, so was not based on an adequate inspection protocol. [Avrit Declaration ¶ 14, 27]. The expert also raises triable issues of material fact with respect to whether the alleged dangerous condition was created by employees or agents of the public entity itself. [Avrit Decl. ¶¶ 11-27].

With respect to the issue of design immunity, defendant the City has failed to submit sufficient admissible evidence to establish the discretionary approval of the subject plans, an essential element of design immunity. [See UMF Nos. 47, 48, and evidence cited; Exs. C, D; San Marino Municipal Code 15.07.08 (Opp. Ex. 38);

Additional Facts Nos. 4-14, and evidence cited].

Plaintiffs’ Objections One and Two to Declaration of Rock Miller, P.E. are SUSTAINED.

Plaintiff’s Objections Three and Four to San Marino Separate Statement are OVERRULED. The court does not consider statements made in a separate statement as evidence.

Case Number: BC678830    Hearing Date: November 15, 2019    Dept: NCD

BC678830 Heather Lehr, et al., vs JPMorgan Chase Bank et al.,

No.19 HEARING ON MOTION FOR SUMMARY JUDGMENT/ADJUDICATION FILED ON BEHALF OF DEFENDANT CITY OF SAN MARINO; STATUS CONFERENCE RE: MEDIATION AND DISCOVERY; 

Motion for Summary Judgment and Status Conference re: Mediation and Discovery has been advanced to 11/14/2019 and continued to 2/07/2020, at 9:00 a.m., in Department D due to calendar congestion.

Judicial Assistant to give notice.