Rupasinghe v. City of Los Angeles

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC603062 Marc D. Gross, Judge. Affirmed.

McNicholas & McNicholas, Matthew S. McNicholas, Jeffrey R. Lamb and Emily R. Pincin for Plaintiffs and Appellants.

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Deputy City Attorney, Scott Marcus, Senior Assistant City Attorney, Blithe S. Bock, Managing Assistant City Attorney and Shaun Dabby Jacobs, Deputy City Attorney for Defendant and Respondent.

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RUBIN, P. J.

Harvey Kaplan fatally struck Rita Rupasinghe with his car as she crossed Overland Avenue at Rose Avenue in a marked crosswalk. Rupasinghe's adult sons, Saranga Upsanna Rupasinghe and Vidura Paul Rupasinghe (plaintiffs), sued the City of Los Angeles, alleging their mother's death was caused by a dangerous condition at the intersection. (Gov. Code, § 835.)^[1]The trial court granted City's motion for summary judgment, finding as a matter of law the intersection was not a dangerous condition at the time of Rupasinghe's death. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Undisputed Facts

On November 10, 2014, at approximately 6:40 p.m., Kaplan was driving southbound on Overland Avenue toward Rose Avenue in the number two lane closest to the curb. He testified in his deposition he was travelling at approximately 15 to 20 miles per hour. Rupasinghe was crossing from east to west on Overland in a marked crosswalk at Rose. Kaplan hit her with his car as she neared the west end of the crosswalk. She died before emergency personnel arrived.

The weather was clear, and it was dark outside. The roadway surface was dry. There were no unusual roadway conditions such as holes, deep ruts, loose material, obstructions, construction, repair zones, roadway width reduction, or flooding.

Where it intersects with Rose, Overland runs north and south with two lanes of traffic in each direction separated by a center turn lane that is ten feet wide. The intersection at Overland and Rose is a "jogged" intersection, meaning Rose does not run straight through Overland. Instead, two offset

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intersections are created: the north jog of Rose intersects the east side of Overland at a T-intersection and the south jog of Rose intersects the west side of Overland at a second T-intersection. Rupasinghe was crossing Overland at the north jog of Rose in a crosswalk that is 15 feet wide with multiple two-foot-wide yellow ladder bars between one-foot-wide yellow boundary stripes spanning the entire width of Overland.

As Overland approaches Rose from the north, it has a straight alignment and runs downhill with a grade ranging from 10 percent to 3.2 percent at the crosswalk. A school is located near the intersection. The posted speed limit in that portion of Overland is 25 miles per hour when children are present or 35 miles per hour otherwise. Signs and pavement markings on the southbound side of Overland include: an eight-foot tall "SLOW SCHOOL XING" roadway marking, two different Advance School Crossing Ahead signs, a Yield Here to Pedestrian sign, white shark's teeth Yield Markings in the roadway, and two fluorescent yellow-green School Crosswalk signs with a 45-degree down arrow on either end of the marked crosswalk.

An overhead streetlight is located on the west sidewalk of Overland, adjacent to the west end of the crosswalk. An overhead streetlight is also located on the northeast corner of Overland and Rose. There are three streetlights on each side of Overland as it approaches the north jog of Rose. All were operational that evening. There is a signalized intersection on Overland at the south jog of Rose.

2. The Lawsuit

On December 7, 2015, plaintiffs filed a complaint against City, alleging Rupasinghe's death was caused by a dangerous condition of public property under section 835. City moved for

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summary judgment, arguing the Overland and Rose intersection was not a dangerous condition as a matter of law, it lacked notice of any dangerous condition, and it was entitled to design immunity. Plaintiffs' opposition primarily relied on a declaration from their traffic and civil engineering expert, Edward Ruzak, who opined on the existence of a dangerous condition at the intersection. The expert identified a number of factors that combined to create a dangerous condition, including the downhill grade, shortened stopping sight distance, curb parking blocking the view, foliage blocking the view or creating shadows, inadequate lighting conditions, oncoming vehicular traffic, inadequate gaps in traffic, lack of warnings or signs, and lack of traffic signals. The expert also cited to prior accidents at that intersection to conclude it was a dangerous condition and that City had notice of the danger prior to Rupasinghe's death. City objected extensively to the expert's declaration. The trial court sustained some of City's objections and declined to rule on others as they did not affect its analysis.

The trial court granted summary judgment in favor of City. It examined each factor identified by plaintiffs as contributing to the dangerous condition and concluded as a matter of law that none of the factors, whether considered alone or together, rendered the intersection dangerous. Having reached this conclusion, the court declined to rule on City's lack of notice and design immunity arguments.

Plaintiffs timely appealed.

DISCUSSION

Plaintiffs seek reversal of the order granting City's motion for summary judgment and the associated evidentiary rulings that excluded portions of their expert's declaration and the

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driver's deposition testimony.^[2] Plaintiffs do not contend City failed to meet its initial burden to negate the existence of a necessary element of the cause of action. As a result, we focus on whether plaintiffs meet their burden to demonstrate a triable issue of material fact exists as to the dangerous condition element of their claim. Given this focus, we need not address those issues or evidentiary rulings that do not affect our consideration of the dangerous condition element.

1. Standard of Review

" 'A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiffs asserted causes of action can prevail.' [Citation.] The pleadings define the issues to be considered on a motion for summary judgment. [Citation.] As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. [Citation.]" (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the

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applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

"We review an order granting summary judgment de novo. [Citation.] The trial court's stated reasons for granting summary judgment are not binding because we review its ruling not its rationale." (Canales v. Wells Fargo Bank, N.A. (2018) 23 Cal.App.5th 1262, 1268-1269.)

"We apply the abuse of discretion standard when reviewing the trial court's rulings on evidentiary objections." (Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1447.) An "erroneous evidentiary ruling requires reversal only if 'there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error.'" (Id. at p. 1449.)

Plaintiffs urge us to independently review the trial court's evidentiary rulings, citing Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535, in which the Supreme Court expressly left unresolved whether evidentiary rulings on a motion for summary judgment are reviewed for abuse of discretion or de novo. The appellate courts are split on this issue. (See e.g., Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1118 [applying abuse of discretion standard]; Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451 [applying de novo review].) However, "the weight of authority" favors applying an abuse of discretion standard to evidentiary rulings on summary judgment motions and we follow those cases. (Schmidt, at p. 1118; see generally Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2021) ¶ 8.168, p. 8-148 ["Pursuant to the weight of authority, appellate courts review a trial court's rulings on evidentiary

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objections in summary judgment proceedings for abuse of discretion."].)

2. Overview of Law on Entity Liability for Dangerous Conditions

A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute. (§ 815.) Under section 835, a public entity may be liable if the following four elements are proven: "(1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it." (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439 (Brenner).)

When it comes to public roadways, "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.) "[P]ublic...