This case was last updated from Los Angeles County Superior Courts on 07/13/2019 at 01:52:43 (UTC).

JOSE JESUS BARRETO ET AL VS CITY OF PASADENA ET AL

Case Summary

On 01/12/2018 a Personal Injury - Other Personal Injury case was filed by JOSE JESUS BARRETO against CITY OF PASADENA in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0210

  • Filing Date:

    01/12/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

CHRISTOPHER K. LUI

 

Party Details

Petitioners and Plaintiffs

BARRETO JOSE JESUS

OCHOA CARMEN

Respondents and Defendants

PASADENA CITY OF

DOES 1 TO 100

OLIVER CHRISTINA JERE

 

Court Documents

Answer

12/21/2018: Answer

Stipulation and Order

3/4/2019: Stipulation and Order

Association of Attorney

3/28/2019: Association of Attorney

Notice of Posting of Jury Fees

5/29/2019: Notice of Posting of Jury Fees

PROOF OF SERVICE SUMMONS

7/30/2018: PROOF OF SERVICE SUMMONS

DEMAND FOR JURY TRIAL

4/26/2018: DEMAND FOR JURY TRIAL

ANSWER?PERSONAL INJURY PROPERTY DAMAGE, WRONGFUL DEATH

4/26/2018: ANSWER?PERSONAL INJURY PROPERTY DAMAGE, WRONGFUL DEATH

PROOF OF SERVICE SUMMONS

5/8/2018: PROOF OF SERVICE SUMMONS

SUMMONS

1/12/2018: SUMMONS

COMPLAINT FOR DAMAGES 1) DANGEROUS CONDITION OF PUBLIC PROPERTY; ETC

1/12/2018: COMPLAINT FOR DAMAGES 1) DANGEROUS CONDITION OF PUBLIC PROPERTY; ETC

 

Docket Entries

  • 06/28/2019
  • at 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 05/29/2019
  • Notice of Posting of Jury Fees; Filed by Pasadena, City of (Defendant)

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  • 05/23/2019
  • at 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion for Summary Judgment - Not Held - Continued - Stipulation

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  • 05/23/2019
  • at 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion for Summary Judgment - Not Held - Taken Off Calendar by Party

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  • 03/28/2019
  • Association of Attorney; Filed by Jose Jesus Barreto (Plaintiff); Carmen Ochoa (Plaintiff)

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  • 03/04/2019
  • Stipulation and Order (Proposed Order and Stipulation to Continue Trial, FSC and Related Motion and Discovery Dates); Filed by Pasadena, City of (Defendant)

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  • 12/21/2018
  • Answer; Filed by Christina Jere Oliver (Defendant)

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  • 07/30/2018
  • Proof-Service/Summons; Filed by Jose Jesus Barreto (Plaintiff)

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  • 07/30/2018
  • PROOF OF SERVICE SUMMONS

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  • 05/08/2018
  • Proof-Service/Summons

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  • 05/08/2018
  • PROOF OF SERVICE SUMMONS

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  • 04/26/2018
  • ANSWER PERSONAL INJURY PROPERTY DAMAGE, WRONGFUL DEATH

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  • 04/26/2018
  • Demand for Jury Trial; Filed by Pasadena, City of (Defendant)

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  • 04/26/2018
  • Answer; Filed by Pasadena, City of (Defendant)

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  • 04/26/2018
  • DEMAND FOR JURY TRIAL

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  • 01/12/2018
  • SUMMONS

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  • 01/12/2018
  • Complaint; Filed by Jose Jesus Barreto (Plaintiff); Carmen Ochoa (Plaintiff)

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  • 01/12/2018
  • COMPLAINT FOR DAMAGES 1) DANGEROUS CONDITION OF PUBLIC PROPERTY; ETC

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Tentative Rulings

Case Number: BC690210    Hearing Date: March 02, 2020    Dept: 28

Motion for Summary Judgment, or alternatively Summary Adjudication

Having considered all documents submitted in support of the motion for summary judgment or alternatively summary adjudication, the Court rules as follows.

BACKGROUND

On January 12, 2018, Plaintiffs Jose Jesus Barreto (“Barreto”) and Carmen Ochoa (collectively, “Plaintiffs”) filed a complaint against Defendants City of Pasadena (“Pasadena”) and Christina Jere Oliver (“Oliver”) and Does 1 to 100 alleging (1) dangerous condition of public property – Barreto against Pasadena; (2) negligence – Barreto against Oliver; and (3) loss of consortium – Ochoa against Pasadena and Oliver.  Plaintiffs allege Barreto was injured on November 26, 2016 when he was struck by Oliver’s vehicle while walking in a crosswalk at a dangerously designed intersection owned and operated by Pasadena.

On July 17, 2019, Pasadena filed this motion for summary judgment or alternatively summary adjudication against Plaintiffs. Plaintiffsfiled their opposition on February 13, 2020. Pasadena filed its reply on February 26, 2020.

On October 15, 2019, Pasadena filed a cross-complaint against Oliver for (1) equitable indemnity; (2) implied indemnity; (3) declaratory relief; (4) contribution; and (5) comparative indemnity.

PARTY’S REQUEST

Pasadena requests the Court grant summary judgment because Plaintiffs’ first cause of action fails since (1) the intersection at issue was not a dangerous condition on public property; (2) the intersection at issue was not a proximate cause of Plaintiffs’ injury; (3) Pasadena is immune from liability under Gov. Code §§ 830.4 and 830.8; (4) Pasadena is immune under design immunity per Govt. Code §§ 830.6; (5) Pasadena is immune from liability for the acts of third parties under Gov. Code § 820.8; (6) Pasadena is immune from liability for discretionary acts under Gov. Code §§ 820.2; (7) Pasadena had no actual notice of a dangerous condition at the intersection at issue; and (8) Pasadena had no constructive notice of a dangerous condition at the intersection at issue. Pasadena also argues Plaintiffs’ third cause of action fails because (9) Pasadena cannot be liable for loss of consortium if Plaintiffs cannot show liability on the first cause of action; and (10) there was no dangerous condition at the intersection at issue.

Alternatively, Pasadena requests the Court grant summary adjudication of each of the ten issues stated above for the reasons stated above.

EVIDENTIARY OBJECTIONS

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.”  CCP § 437c(q).

I.Plaintiffs’ Evidentiary Objections

Plaintiffs’ objections are ruled upon as follows:

SUSTAINED: 10

OVERRULED: 5, 9

II.Pasadena’s Evidentiary Objections

Pasadena’s objections are ruled upon as follows:

SUSTAINED: 2-4, 20, 23, 25-26, 29, 33-34, 41, 50, 73 

OVERRULED: 1, 45, 48, 51-52, 54

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to determine whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) exist and the moving party is entitled to judgment as a matter of law.  (Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.)

As to each claim as framed by the complaint, the party moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate or establish an essential element. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) (See Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 475; Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.)

Once the moving party has met the burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto.  (Code Civ. Proc. § 437c(o)(2).) (Code Civ. Proc. § 437c(o)(1)-(2).)

ANALYSIS

I.Dangerous Condition on Public Property

Gov. Code § 835 is the sole statutory basis for a claim imposing liability upon a public entity based upon the condition of public property.  (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438.)   To state a cause of action under Gov. Code § 835, Plaintiffs must prove: (1) the dangerous condition existed at the time of the incident; (2) the condition proximately caused the alleged injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the City had actual or constructive notice of the condition of the property in sufficient time to have taken measures to protect against it.  (Gov. Code § 835; Vedder v. County of Imperial (1974) 36 Cal.App.3d 654, 659.)  Gov. Code § 830 defines a “dangerous condition” as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”  (Gov. Code § 830.)  Gov. Code § 830.2 explains further that “[a] condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used”. (Gov. Code § 830.2.)  

“[A]ny property can be dangerous if used in a sufficiently improper manner. For this reason, a public entity is only required to provide roads that are safe for reasonably foreseeable careful use.”  (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196.)  “A condition is not dangerous... unless it creates a hazard to those who foreseeably will use the property or adjacent property with due care. Thus, 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.”  (Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1466.)  “[T]he statute means that the condition is dangerous if it creates a substantial risk of harm when used with due care by the public generally, as distinguished from [a] particular person…” (Murrell v. State ex. rel. Dept. of Pub. Works (1975) 47 Cal.App.3d 264, 267.)

A dangerous condition of public property can arise from a damaged or deteriorated condition, from structural or natural features, or from the presence of latent hazards associated with its natural use.  (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 149.)  A public entity may be liable for a dangerous condition of public property even where the immediate cause of plaintiff's injury is a third party's negligent or illegal act (like grossly negligent driving) if some physical characteristic of the property exposes its users to increased danger from third party negligence or criminality.”  (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1348.)  However, “it is insufficient to show only harmful third-party conduct, like the conduct of a motorist. Third-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. 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.”  (Ibid. (quotations omitted).)  A public entity is entitled to assume that drivers will obey all driving laws.  (Chowdhury v. City of Los Angeles, supra, 38 Cal.App.4th at 1195.) Veh. Code § 21801(a).)

Here, Defendant has presented prima facie evidence that the intersection of Garfield Avenue and Orange Grove Boulevard in Pasadena was not a dangerous condition on public property because a reasonable person walking northbound in the crosswalk on Garfield Avenue at Orange Grove Boulevard would not have faced a substantial risk of injury because a car turned left from southbound Garfield Avenue onto eastbound Orange Grove Boulevard, absent negligence from the third-party driver. 

On November 26, 2016 at approximately 3:51pm, Oliver was stopped at a red light in the southbound lanes of Garfield Avenue at the intersection of Orange Grove Boulevard in Pasadena. (Pasadena’s UMF 1.) When the light turned green, Oliver drove her car forward and began to make a left turn onto eastbound Orange Grove Boulevard. (UMF 2.) Simultaneously, Barreto was walking northbound in the marked crosswalk on Garfield Avenue, crossing Orange Grove Boulevard. (UMF 3.) Without yielding to Barreto, Oliver struck him in the crosswalk during the left turn. (UMF 4.) Surveillance videos showed Barreto was walking northbound on Garfield Avenue crossing Orange Grove Boulevard in a marked crosswalk and the pedestrian light was green. (UMF 7-8.) As Barreto approached the middle of the intersection of Orange Grove Boulevard, Oliver’s 2009 Hyundai Sonata turned left from Garfield Avenue to eastbound Orange Grove Boulevard, striking Barreto. (UMF 9.) The subject crosswalk was properly marked and clearly visible and the traffic signals were in good working order. (UMF 10.) There were no obstructions to the cross-walk, thus, making any pedestrians walking in the crosswalk clearly visible. (UMF 11.) The intersection and accident location are straight and level. (UMF 15.) The intersection was designed and constructed in a manner that was in compliance with all applicable traffic engineering standards, including the California Manual On Uniform Traffic Control Devices, and has remained in that condition up to the present. (UMF 23.)  Thus, Pasadena has prima facie negated an essential element of Plaintiffs’ first cause of action: that a dangerous condition existed at the time of the incident.

In opposition, Plaintiffs fail to present evidence that raises a triable issue of material fact on whether a dangerous condition existed at the time of the incident.  Against Pasadena’s evidence that the crosswalk was properly marked and clearly visible and the traffic signals were in good working order, Plaintiffs argue that the intersection was confusing and the crosswalk and lane lines were not clear; that the intersection did not correspond to the drawings and failed to comply with Pasadena’s 2011 Pedestrian Study at Signalized Intersections; and that there was an inadequate all-red clearance. (Plaintiff’s Response to UMF 10.) Against Pasadena’s evidence that there were no obstructions in the crosswalk making any pedestrians walking in the crosswalk clearly visible, Plaintiffs argue that a left turning vehicle from eastbound Orange Grove to northbound Garfield turned in front of Oliver’s vehicle obstructing Oliver’s view, so the turning vehicle created a sight obstruction. (Plaintiff’s Response to UMF 11.)

Plaintiffs evidence that the intersection was “confusing” to Oliver or that the crosswalk and lane line are “not clear” to Oliver is not probative of whether the intersection was a dangerous condition. (See Plaintiffs’ Appendix of Exhibits, Ex. 5 at pp. 76:3-77:25.) The intersection must have been dangerous when used with due care by the public generally, not by a particular person. (Murrell, supra, 47 Cal.App.3d at p. 267.) A public entity is entitled to assume that drivers will obey all driving laws.  (Chowdhury v. City of Los Angeles, supra, 38 Cal.App.4th at 1195.)  Vehicle Code § 21801(a) provides in pertinent part “[t]he driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk in an intersection.” (Veh. Code § 21801(a) (emphasis added).)  It is undisputed that Oliver struck Barreto in an intersection, so Oliver had a duty to yield to the pedestrian Barreto regardless of whether Oliver could see the crosswalk or lane lines, regardless of whether crosswalk or lane lines existed. Nor does Oliver’s deposition testimony invoke the rule in Chowdhury that the government can be liable if it installs traffic signals and invites the public to justifiably rely on them. (38 Cal.App.4th at p. 1195.) The rule is “[i]f . . . the government installs traffic signals and invites the public to justifiably rely on them, liability will attach if the signals malfunction, confusing or misleading motorists, and causing an accident to occur.” (Chowdhury, supra, 38 Cal.App.4th at p. 1195 (emphasis added).) Liability only attaches if a traffic signal malfunctions, which malfunction confuses motorists. (Ibid.) The confusion of motorists only matters on the issue of proximate cause, which is addressed in the next section. 

Plaintiffs evidence that the intersection did not correspond to the Channelization Plan or Drawing 5485, Sheet 3 of 3 is not probative of whether the intersection was a dangerous condition. (See Ruzak Dec. at ¶¶ 13-15.) Plaintiff’s expert, an engineer, opines that the Channelization Plan of 2008 (Pasadena’s Index of Exhibits, Ex. I.) showed the subject intersection with a yellow zebra crosswalk, which would have been more visible and therefore would have been more appropriate and safer. (Ruzak Dec. at ¶ 13.) The same expert points out that Drawing 5485 shows the crosswalk at issue as being symmetrical but the crosswalk is not symmetrical. (Ruzak Dec. at ¶ 14.) The same expert also notes that the Channelization Plan of 2008 showed Orange Grove Boulevard with 50-foot white lane lines, but Orange Grove Boulevard did not have white lane lines at the time of Barreto’s injury. (Ruzak Dec. at ¶ 15.)  The Ruzak Declaration is not probative of the material facts because the operative question is not how the subject intersection could have been safer or could have more closely conformed to the drawings. The operative question is whether the intersection or some characteristic of the intersection created a substantial risk of injury when used with due care in a reasonably foreseeable manner. (Gov. Code § 830.) A driver’s ability to see lane lines or crosswalk lines at an intersection is not probative of the danger of a driver hitting a pedestrian at an intersection, because drivers have a duty to yield to pedestrians at intersections regardless of whether the crosswalks are marked or not. (See Veh. Code § 21801(a).) The symmetry of crosswalk lines is even less relevant.

Plaintiffs’ evidence that the intersection did not follow the recommendations of the City of Pasadena 2011 Pedestrian Study at Signalized Intersections is also not probative of whether the intersection was a dangerous condition because it too merely recommends additional safety measures for intersections with traffic signals generally, without showing what characteristic of the intersection at issue created a substantial risk of injury when used with due care. First, the City of Pasadena 2011 Pedestrian Study at Signalized Intersections is not official policy for Defendant Pasadena. (Plaintiff’s Appendix of Exhibits, Ex. 1 at p. 35 (“This document is not an official City policy or adopted document”).) Second, the Study merely recommends additional safety measures; it does not explain that how any characteristic of the intersection was unsafe for Barreto. Third, a municipality’s “failure” to follow recommendations in traffic manuals or other guidance documents does not alone establish any part of an intersection was a dangerous condition. (Thimon v. City of Newark (2020) – Cal.Rptr.3d – 2020 WL 416112 at p. *8.)

Plaintiffs’ expert’s opinion that a leading pedestrian interval would have prevented the collision is entirely speculative. Plaintiffs’ expert states that leading pedestrian intervals “reduce conflict between turning vehicles and pedestrians.” (Ruzak Dec. at ¶ 19.) From this, Plaintiffs’ expert concludes that because Barreto was struck as Barreto was halfway across of the crosswalk, “if [Barreto] had taken a few more steps and/or if the Oliver vehicle had been delayed a fraction of a second, the collision most likely would not have occurred.” (Ruzak Dec. at 19.) Plaintiffs’ expert’s conclusion has nothing to do with his training as a civil engineer; he is speculating about the factual cause of the collision. Obviously, if Barreto was farther along in the crosswalk or if Oliver had taken more time to go through the intersection, then the collision might not have occurred.  If two objects are travelling along intersecting paths (a pedestrian crossing a street as a car drives along the street) and the two objects do not simultaneously arrive at the point where their paths intersect (the only place where the car could hit the pedestrian), then the objects will not hit each other. Vehicle Code § 21801(a) makes Oliver’s obligation very clear: to yield to pedestrians crossing at intersections, not to go around them. Therefore, Plaintiff’s expert has failed to explain how the absence of a leading pedestrian interval created a dangerous condition by increasing the risk that a driver would fail to yield to a clearly visible pedestrian crossing at an intersection.

Plaintiffs’ expert also opines that the all red clearance phase of the intersection’s traffic signals was too short.  (Ruzak Dec. at ¶ 22.) “A longer all red clearance allows vehicles in the intersection to clear the intersection which reduces potential sight obstructions by other vehicles and can increase visibility which allows pedestrians and drivers to see each other.” (Ruzak Dec. at ¶ 17.) “Pasadena created the dangerous condition by using an “all red” clearance that was too short.” (Ruzak Dec. at ¶ 24.) “[E]xpert opinions . . .  are not determinative . . . [it is] this court’s statutory task pursuant to section 830.2, of independently evaluating the circumstances.” (Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1189.) Here, Plaintiffs do not state that the all red clearance was the dangerous condition, rather the all red clearance created the dangerous condition. Indeed, an all red clearance phase cannot be a dangerous condition by itself; Plaintiffs’ argue it creates danger when “vehicles in the intersection” do not have time to “clear the intersection” and therefore those vehicles – not the all red clearance phase – create “potential sight obstructions. (Ruzak Dec. at ¶¶ 17, 22, 24.)

The closest thing to a dangerous condition that Plaintiffs identify is in Plaintiffs’ Response to Undisputed Material Fact 11; a visual obstruction was created when a “left turning vehicle from eastbound Orange Grove to northbound Garfield turned in front of Oliver’s vehicle obstructing Oliver’s view, i.e., the turning vehicle created a sight obstruction.” However, other cars passing through the intersection is not a condition unique to this intersection. Traffic is a characteristic of all intersections. 

Further, Plaintiffs’ own evidence shows Barreto was clearly visible out Oliver’s driver’s side window before and after the “left turning vehicle” went through the intersection during the all red clearance.  “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” (Scott v. Harris (2007) 550 U.S. 372, 380 (disregarding plaintiff's characterization of his driving while evading police where it was “utterly discredited” by police dashboard camera).) Plaintiffs’ Exhibit 3 is two still frames from a surveillance video showing Oliver’s car sitting at the intersection before Oliver made her fateful left turn. (Plaintiff’s Appendix of Exhibits, Ex. 3.) Exhibit 3 also shows the “left turning vehicle” proceeding through the intersection before the light turned green for Oliver. (Plaintiff’s Appendix of Exhibits, Ex. 3.) Clearly visible on the left side of the photos is Barreto walking on the sidewalk. (Plaintiff’s Appendix of Exhibits, Ex. 3.) The first photo in Exhibit 3 is timestamped 15:51:10 and Barreto is walking parallel to Oliver’s driver side window while the “left turning vehicle” is in front of Oliver’s car. (Plaintiff’s Appendix of Exhibits, Ex. 3. at p. *1.) The second photo in Exhibit 3 is timestamped 15:51:11 and Barreto is still on the sidewalk outside Oliver’s driver’s side window but he is beginning to be obscured by the “left turning vehicle”. (Plaintiff’s Appendix of Exhibits, Ex. 3. at p. *2.) Plaintiff’s Exhibit 2 is a photo of the same intersection timestamped 15:51:17 which shows Barreto in the middle of the crosswalk about to be hit head-on by Oliver’s car. (Plaintiff’s Appendix of Exhibits, Ex. 2.)

II.Proximate Cause 

Assuming that the shorter all red clearance factually caused the left turning vehicle to obstruct Oliver’s view of Barreto for a second or two between 15:51:10 and 15:51:17, the question becomes whether that proximately caused Oliver to hit Barreto with her car; whether the assumed dangerous condition of the intersection caused Barreto’s injury. court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” (Scott v. Harris, supra, 550 U.S. at p. 380.) 

Rather than believe what the video evidence shows about this injury, Plaintiffs ask the Court to find a triable issue as to proximate cause because Pasadena had a 0.5 all red clearance phase, which caused the “left turning vehicle” to make a left turn, which obstructed Barreto from Oliver’s view for one or two seconds, which caused Oliver to not see Barreto despite an unobstructed view six seconds later. Taking this chain of causation step by step, Plaintiffs fail to establish Pasadena’s design of the intersection proximately caused Barreto’s injury. First, Plaintiffs’ fail to establish how the short all red clearance phase increased the risk of the left turning vehicle momentarily blocking Oliver’s view of Barreto.  Logic dictates any vehicle passing between Oliver and Barreto would have momentarily obstructed the view between them, whether there was a short all red clearance phase, a long all red clearance phase, or no all red clearance phase.  Second, Plaintiffs’ fail to establish how Oliver not being able to see Barreto standing on the sidewalk at 15:51:11 increased the risk that Oliver would not be able to see Barreto over the next six seconds.  Additionally, Plaintiffs’ argument fails to explain what physical characteristic of the intersection was stopping Oliver from seeing Barreto as he crossed more than half of the street. None of Plaintiffs’ evidence shows, if Oliver was not going to look for pedestrians before entering the intersection or during her turn through the intersection, that Pasadena caused Oliver to run head-on into Barreto as he crossed the street in broad daylight. “[E]ven 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.” (Schonfeldt, supra, 61 Cal.App.4th at p. 1466.)

Therefore, Plaintiffs have failed to meet their burden to produce evidence showing a triable issue of material fact on two essential elements of Plaintiffs’ first cause of action: existence of a dangerous condition and proximate cause.  

III.Immunity from Failure to Provide Regulatory Traffic Signal

Plaintiffs’ final attempt to create a triable issue is for Plaintiffs’ expert to opine that Pasadena should have installed a sign reading “Turning Traffic Must Yield to Pedestrians.” Plaintiffs’ cannot prevail with this argument as a matter of law. “[T]he Legislature has expressly provided that [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. Code] § 830.4.)”  (Brenner, supra, 113 Cal.App.4th at p. 439.) Therefore, Pasadena cannot be liable because the intersection at issue did not have a yield to pedestrians sign.

IV.Loss of Consortium

Because Plaintiff Barretos first cause of action fails against Pasadena, Plaintiff Ochoa’s derivative third cause of action for loss of consortium against Pasadena also fails. (See Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1066 n. 3.)

CONCLUSION

Defendant City of Pasadena’s motion for summary judgment is GRANTED.

Defendant City of Pasadena is ordered to give notice of this ruling.

Case Number: BC690210    Hearing Date: November 05, 2019    Dept: 4A

Motion to Compel Deposition

Having considered the moving, opposing, reply, and amended reply papers, the Court rules as follows.

BACKGROUND

On January 12, 2018, Plaintiffs Jose Jesus Barreto and Carmen Ochoa (“Plaintiffs”) filed a complaint against Defendants City of Pasadena and Christina Jere Oliver alleging dangerous condition of public property, negligence, and loss of consortium for an automobile-pedestrian collision that occurred on November 16, 2016.

On October 2, 2019, Plaintiffs filed a motion to compel a deposition pursuant to California Code of Civil Procedure section 2025.450.

On October 15, 2019, Defendant/Cross-Complainant City of Pasadena filed a cross-complaint against Defendant/Cross-Defendant Christina Jere Oliver seeking indemnity, declaratory relief, and contribution.

Trial is set for May 28, 2020.

PARTIES REQUESTS

Plaintiffs ask the Court to compel Defendant/Cross-Defendant Christina Jere Oliver (“Oliver”) to appear and testify at a deposition within 14 days of ruling on this motion.

LEGAL STANDARD

California Code of Civil Procedure section 2025.450, subdivision (a) provides: “If, after service of a deposition notice, a party to the action or . . . managing agent . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.”

California Code of Civil Procedure section 2025.450, subdivision (b) provides: “A motion under subdivision (a) shall comply with both of the following:

  1. The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

  1. The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

California Code of Civil Procedure section 2025.450, subdivision (c) provides, “(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” Failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery are misuses of the discovery process.  (Code of Civ. Proc. § 2023.010, subd. (d), (g).)

DISCUSSION

Plaintiffs noticed the deposition of Oliver for July 1, 2019 and continued it to July 23, 2019.  (Kramer Decl., ¶ 2.)  On July 15, 2019, Oliver served an objection to the amended deposition notice stating that counsel did not have contact with Oliver and was therefore unable to produce her for the deposition on July 23, 2019.  (Kramer Decl., 3.)  Oliver’s counsel admits that they objected to the deposition notice due to a failure to make contact with Oliver.  (Seeger Decl., 6.)

The Court finds it is necessary to grant the motion to compel.  Oliver failed to remain in contact with her counsel, delaying the discovery process.  It is unfair to have Plaintiffs’ discovery rights hampered because of Oliver’s persistent failure to remain available for communications with her counsel.  Plaintiffs do not request sanctions and, thus, the Court finds an imposition of sanctions would be unjust.

The motion is GRANTED.

Oliver is ordered to appear for and testify at a deposition pursuant to the July 23, 2019 deposition notice within 30 days of this order.

Plaintiffs are ordered to give notice of this ruling.