Opinion
B322860
01-24-2023
ALEX BORJA et al., Plaintiffs and Appellants, v. CITY OF SAN JOSE, Defendant and Respondent.
Fine, Boggs &Perkins, John P. Boggs; Sinclitico &Burns and Hugh R. Burns for Plaintiffs and Appellants. Nora Frimann, City Attorney, Ardell Johnson, Assistant City Attorney, Kendra McGee-Davis and Margo Laskowska, Deputy City Attorneys, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Santa Clara County No. 17CV318915, Socrates Peter Manoukian, Judge. Affirmed.
Fine, Boggs &Perkins, John P. Boggs; Sinclitico &Burns and Hugh R. Burns for Plaintiffs and Appellants.
Nora Frimann, City Attorney, Ardell Johnson, Assistant City Attorney, Kendra McGee-Davis and Margo Laskowska, Deputy City Attorneys, for Defendant and Respondent.
BENDIX, J.
Alex Borja suffered serious injuries in a motor vehicle collision with a pickup truck driven by James Richard Brown (Collision). Plaintiffs and appellants Alex and his wife Eugenia Serrano Borja sued the City of San Jose (the City) alleging negligence and a dangerous condition of public property. Plaintiffs challenge the trial court's entry of summary judgment in favor of the City.
We conclude that plaintiffs presented no evidence raising a triable issue of fact that the alleged dangerous condition of public property caused Alex Borja's injuries, and therefore the trial court properly summarily adjudicated that cause of action. Plaintiffs have abandoned their remaining cause of action for negligence. We affirm the judgment in favor of the City.
FACTUAL AND PROCEDURAL BACKGROUND
On July 1, 2017, at approximately 8:26 a.m., plaintiff Alex Borja was injured in an automobile accident when the car he was driving collided with a pickup truck driven by James Brown at the intersection of West Alma Avenue and Vine Street in San Jose (Intersection). Brown was traveling westbound on Alma Avenue approaching Vine Street after turning left from northbound Almaden Expressway.
Just before the Collision, Alex Borja had a green light, and the light remained green as he entered the Intersection. In their responsive separate statement, plaintiffs did not dispute that according to Alex Borja's Government Claim, "because the traffic signal facing him was green 'for far too long' . . . he was 'incentivized to race to make the light.' "
Brown was driving a large pickup truck and went through a red light at the Intersection.[ Brown failed to stop at the red traffic signal at the Intersection and attempted to travel through the Intersection. In plaintiffs' responsive separate statement, they do not dispute the fact that just after Brown drove through the red light "he slammed into the driver's side of Plaintiff [Alex] Borja's Chevy Impala [and] Borja was ejected from the vehicle and sustained serious injuries."
Although Brown testified that the light was green when he drove through it, the parties to this appeal do not dispute that the light was red.
Although in their responsive separate statement, plaintiffs disputed Borja and Brown's "familiar[ity]" with the Intersection, they do not dispute that Alex Borja drove through the Intersection almost every day over a 14-year period and Brown drove through it at least 10 times prior to the Collision. In addition, the following fact was undisputed in plaintiffs' responsive separate statement: Both drivers were aware of a traffic signal at the Intersection.
The parties' respective separate statements indicate that the following facts are undisputed: The traffic signal-a red, yellow, and green light-at the Intersection was properly functioning at the time of the Collision. The intersection of West Alma Avenue and Almaden Expressway-where Brown made a left-hand turn prior to the Collision-also had a red, yellow, and green traffic signal. The two intersections were closely spaced and operated on a single signal controller. The traffic signal for westbound traffic on Alma at Vine is red "during each and every time the traffic signal is a green arrow for the northbound left turn from Almaden onto westbound Alma."
1. Pleadings
In November 2017, Alex Borja and Eugenia Serrano Borja (plaintiffs) filed a complaint against James Richard Brown and Does 1 to 20. Plaintiffs alleged causes of action for negligence, personal injury and property damage based on a motor vehicle collision.[ Eugenia Borja asserted a cause of action for loss of consortium. Plaintiffs later added Victor Bringas Construction (VBC) as a defendant. The trial court granted summary judgment in favor of VBC, who is not a party to this appeal. Brown also is not a party to this appeal.
Borja alleged that "[o]n July 1, 2017, on W. Alma at or near its intersection with W. Vine, City of San Jose, California, Defendant James Richard Brown was the driver of the subject adverse vehicle, 2008 Black Nissan . . . owned, serviced and maintained by Defendant, James Richard Brown and Does 1 to 20, Inclusive. On said date, at said location, James Richard Brown and Does 1 to 20, Inclusive . . . caused said vehicle to collide with a certain 1960 Chevrolet Impala . . . then operated by Plaintiff, Alex Borja[.] Said unlawful conduct of Defendants, and each of them, caused serious and permanent injury to plaintiff, Alex Borja, who thereby has incurred and will incur in the future, medical expenses and lost earnings/earning capacity as well as loss of use of said vehicle." (Some capitalization omitted.)
On June 15, 2018, Alex and Eugenia Borja filed a complaint against the City of San Jose for dangerous condition of public property and negligence. On appeal, plaintiffs do not challenge the trial court's summary adjudication of the cause of action for negligence. In their cause of action for dangerous condition of public property, plaintiffs alleged: The intersection of West Alma Avenue and Vine Avenue "was in a dangerous condition, which created a substantial risk [of] injury when the intersection was used with due care in a manner in which it was reasonably foreseeable that it would be used in the following respects .... [¶] . . . The traffic lights facing westbound traffic on West Alma and southbound on Vine were defective in their design, construction or maintenance. [¶] . . . The intersection was designed, constructed and maintained in such a manner, combined with the conditions of adjacent properties, that made it difficult for southbound motorists on Vine to see approaching vehicles westbound on West Alma until their vehicles are near or in the intersection, and vice-versa. [¶] . . . The above dangerous conditions are exacerbated by the design of [the] intersection of West Alma and Almaden, which is adjacent to the intersection. The West Alma and Almaden intersection is very large, and of a highly irregular trapezoidal shape, and for westbound motorists, is extremely close to the intersection." (Some capitalization omitted.)
The City generally denied all allegations and asserted several affirmative defenses including design immunity.
2. The City moved for summary judgment
The City moved for summary judgment on the grounds that plaintiffs could not maintain a cause of action for negligence against it.
The City also argued plaintiffs did not allege a dangerous condition as defined by Government Code section 830, which provides in pertinent part:" 'Dangerous condition' means 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, subd. (a).) According to the City, even if the condition of public property were dangerous, there was no causal relationship between the alleged dangerous condition and plaintiffs' injuries. The City argued that the only cause of the Collision was "Brown's failure to comply with traffic laws." The City also argued that it was not liable for any dangerous condition because it had design immunity.
The City attached excerpts from Brown's deposition. In his deposition, Brown testified he was familiar with the Intersection. Prior to the Collision, he had stopped at the traffic light at the Intersection. Brown knew there was a traffic light at the Intersection. Brown testified that nothing obstructed his view of the traffic light. He had a "clear view" of the traffic light. Brown had no "difficulty navigating the intersection."
The City also attached excerpts of Alex Borja's deposition. In it, he testified he had driven through the Intersection "a number of times" before the Collision. Borja had stopped for the traffic light on prior occasions when he drove through the Intersection. Prior to the Collision, Borja estimated he drove through the Intersection daily over 14 years.
3. Plaintiffs opposed summary judgment
In opposition to summary judgment, plaintiffs argued that the "defective design of the subject intersection and concurrent signal light timing created a trap which prevented Mr. Brown from timely perceiving and reacting to the red light at Vine and Alma with sufficient time to safely stop before the accident." According to plaintiffs: "When executing a left turn from northbound Almaden onto westbound Alma, the red traffic signal indication does not come clearly into view until the left turn maneuver is nearly completed. The available time and space to see and react to the red traffic signal indications at Vine is limited."
In a declaration in support of plaintiffs' opposition to summary judgment, Matthew Manjarrez, a civil engineer and traffic engineer, averred that the traffic signal for westbound traffic on Alma Avenue at Vine Street is red every time the traffic signal is a green arrow for the northbound left turn from Almaden Expressway onto westbound Alma Avenue. As a result, the "available space consistently filled or overflowed" with vehicles turning left from Almaden Expressway who were then required to stop at the red light at the Intersection. Manjarrez described the available space as "no more than 100 feet . . . for vehicles stopped on westbound Alma Avenue at Vine Street before they create problems for traffic flow within that intersection." Manjarrez averred that the Intersection is "integrally linked with the adjacent intersection of Alma Avenue and Almaden Expressway." Manjarrez opined that "[t]here is insufficient stopping sight distance to ensure that drivers have adequate time and space to perceive, react, and appropriately respond to the red traffic signal indication at Vine Street after turning left from northbound Almaden Expressway resulting in an increased potential for red light violations at this location." According to Manjarrez, "[A]ny driver who is unfamiliar with the subject location, inattentive, distracted, or traveling at a speed on the higher end of the reasonable range would be susceptible to failing to respond as intended to the traffic signal indications at the intersection ...."
Manjarrez averred that prior to the Collision, 10 collisions occurred at the Intersection. Three such collisions occurred in 2012, two in 2014, one in 2015, and four in 2016. An additional collision occurred after the one involving Borja and Brown. Manjarrez opined that the Intersection's collision history "provides a strong indication that there is an operational safety deficiency at the intersection." Manjarrez further opined that the City failed to identify the deficiency or address it. Manjarrez opined that the traffic signal phase allowing a green arrow and then a red light after only a short distance was "neither reasonable nor appropriate."
Dr. Tate Kubose, who holds a Ph.D. in cognitive psychology, averred that there was an increased likelihood of a collision at the Intersection because there were no signs warning drivers of an upcoming red light; a driver may not see the red light because he or she is focusing on other driving tasks; if a driver approaches the intersection quickly he or she may not be able to stop in advance of the red light. Kubose also opined that a driver may be more likely to run a red light rather than brake at the level required by the green arrow red light sequencing. A driver may not notice the red light if the driver is scanning for pedestrians or monitoring traffic.
Joseph Yates, a motor vehicle accident reconstructionist, also offered a declaration in favor of plaintiffs' opposition to summary judgment. Yates opined, "[T]he proximity and layout of the adjacent intersections and the coordinated phasing of their traffic signals played causal roles in the driver of the Nissan vehicle [Brown] entering the intersection against a red light and impacting the Borja Chevrolet." Yates explained that "[d]ue to the diagonal intersection, the Nissan [driven by Brown] had to turn to its left through an angle of 126 degrees, 36 degrees more than a right angle, to enter the number one lane of Alma Avenue. This would require a turn radius of approximately 44 degrees, through an arc length of approximately 97 feet." Yates indicated that "the Nissan pickup truck operated by Mr. Brown started from rest at the Almaden/Alma diagonal intersection. On getting a green arrow signal, the Nissan turned back to its left through 126 degrees to proceed westbound on Alma Avenue. The Nissan was aligned with and accelerated along Alma Avenue for only 3.5 seconds before entering the . . . [Intersection] and impacting Mr[.] Borja's Chevrolet."
4. The trial court's grant of summary judgment
The trial court granted summary judgment in favor of the City. The tentative ruling, later adopted in the judgment, indicates all of the following: Plaintiffs did not oppose the summary judgment on negligence. The court did not "simply [accept] Plaintiffs' expert opinions as to whether the Intersection here is a dangerous condition or that the expert opinions, in and of themselves, are sufficient to create a triable issue of material fact." "Plaintiffs' expert's opinion and conclusion that the purportedly dangerous conditions here increase the risk that drivers turning left from northbound Almaden Expressway to West Alma Avenue will run a red light at the intersection is not sufficiently supported/developed." The history of collisions at the Intersection does not show "an increased risk." There is simply no point of reference. "If Plaintiffs' experts had provided some evidence that an intersection with similar amount of traffic to the subject Intersection, but without any dangerous conditions, experienced zero collisions in the same time period, then there would be some basis for the Plaintiffs' expert to reach the conclusion that there is an increased risk from the conditions at the subject Intersection." The court "determine[d] as a matter of law that the conditions alleged by Plaintiffs are not dangerous because there is no evidence of increased or intensified risk created by the conditions at the Intersection." In granting summary judgment in favor of the City, the trial court relied on the absence of a dangerous condition-a necessary element of a cause of action for dangerous condition to public property.
DISCUSSION
A. Standard of Review
" 'The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.' [Citation.] '[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.' [Citation.] A defendant can meet this burden by 'present[ing] evidence which, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff's case cannot be established.' [Citation.] '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 ....' [Citations.] A triable issue of material fact exists when '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 applicable standard of proof.' [Citation.]" (Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 287-288 (Webster).)
We review an order granting summary judgment de novo. (Webster, supra, 26 Cal.App.5th at p. 288.) This court reviews the trial court's ruling, "not its rationale." (Dictor v. David &Simon, Inc. (2003) 106 Cal.App.4th 238, 245.) This court's obligation to conduct a "de novo review [of the grant of summary judgment] does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed." (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116, disapproved on another ground as recognized in Kaufman &Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 41-42; see also Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 ["appellate court is not required to search the record on its own seeking error"]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1111, 1115 [rejecting appellant's challenge to the grant of summary judgment because, although appellant argued" 'a plethora of admissible evidence' indicat[ed] a triable issue of fact existed" on many of his claims, appellant waived the argument by failing to identify where the evidence could be found in the record].)
B. Elements of a Cause of Action for Dangerous Condition of Public Property
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 forseeable risk of the kind of injury which was incurred, and [that] . . . [t]he public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.'" (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 146 (Bonanno).) "A 'dangerous condition,' as defined in section 830, is 'a condition of property that creates a substantial . . . risk of injury when such property or adjacent property is used with due care' in a 'reasonably foreseeable' manner." (Id. at p. 147.) The existence of a dangerous condition generally is a question of fact but may be a question of law if "reasonable minds can come to only one conclusion." (Id. at p. 148.)
"[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. [Citation.] 'If [ ] it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not "dangerous" within the meaning of [Government Code] section 830, subdivision (a).' [Citation.]" (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196.) "[I]f a condition of public property 'creates a substantial risk of injury even when the property is used with due care' [citation], a public entity 'gains no immunity from liability simply because, in a particular case, the dangerous condition of its property combines with a third party's negligent conduct to inflict injury.' [Citation.]" (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105 (Cordova).)
In addition to showing the existence of a dangerous condition, a plaintiff must show, inter alia, that "the dangerous condition proximately caused his or her injury." (Bonanno, supra, 30 Cal.4th at pp. 154-155.) A public entity may be liable for a dangerous condition of public property that "caused the injury plaintiffs suffered in an accident, but did not cause the third party conduct that led to the accident." (Cordova, supra, 61 Cal.4th at p. 1104 [summary judgment reversed because plaintiffs did not have to show the alleged dangerous condition, a magnolia tree in a city median strip, caused the third party conduct, a motorist's sideswiping the car driven by one of the decedents, which car then hit the tree].) The key issue in this case is whether a dangerous condition of public property caused plaintiffs' injuries. (Id. at p. 1111 [on remand, the "court must also decide whether plaintiffs presented sufficient evidence that the configuration of the roadway was a proximate cause of the fatal injuries suffered by their decedents"].)
C. Plaintiffs Presented No Evidence Raising a Triable Issue of Material Fact on Causation
We conclude that the issue of causation is dispositive.[ For purposes of this appeal, we accept plaintiffs' representation they raised a triable issue of material fact that a combination of factors created a dangerous condition of public property, and we assume for purposes of this appeal that prior collisions at the Intersection support plaintiffs' theory that the Intersection was a dangerous condition of public property.
Because causation is dispositive, we need not discuss the parties' remaining arguments. The City's request for judicial notice of trial exhibits is denied because those exhibits are not pertinent to whether there is a triable issue of material fact as to causation.
To recapitulate, plaintiffs describe the dangerous conditions as the "trapezoidal shape" of the two intersections Almaden/Alma and Vine/Alma are at a 126-degree angle and are in close proximity to each other. As a result," 'any driver who is unfamiliar with the subject location, inattentive, distracted, or traveling at a speed on the higher end of the reasonable range would be susceptible to failing to respond as intended to the traffic signal indications at the intersection ....'" "[A] northbound driver on Amaden turning onto Alma needs to turn his head beyond the typical rotational range of his neck employed during the normal environment scanning driving task." "A 'driver who is not expecting to encounter the red light, is inattentive, or is traveling at a higher than typical speed through the left turn has a higher propensity for red light running at [Vine].'" The coordination of the two intersections such that a driver has a green arrow at Almaden/Alma and then a red light at Alma/Vine is inconsistent with the California Manual on Uniform Traffic Control Devices (MUTCD) and does not permit the traffic signal at the Intersection "to be continuously visible to drivers turning left from Almaden onto Alma for the minimum stopping sight distance prescribed by the MUTCD."
In Bowman v. Wyatt (2010) 186 Cal.App.4th 286, the plaintiff suffered severe injuries when his motorcycle collided with a dump truck, whose driver contracted with the City of Los Angeles. (Id. at p. 293.) A jury found that the truck was in a dangerous condition and the City breached a duty to inspect or maintain the truck's brakes. (Id. at p. 294.) Division Four of this court reversed the jury verdict on the ground there was no substantial evidence the allegedly dangerous condition of public property-defective brakes on a dump truck-caused the collision between the truck and a motorcyclist. (Id. at pp. 310-314.) The plaintiff offered no "direct evidence that faulty brakes caused the collision" but rather "asked the jury to infer from the brake defects discovered after the accident that defects existed before the accident and were the accident's cause." (Id. at p. 312.) Although there was substantial evidence the brakes were defective (id. at pp. 310-311), there was no substantial evidence linking the brakes with the accident (id. at pp. 313-314). Rather, the truck's driver testified that "he never had had any trouble stopping his truck, including on the day of the accident." (Id. at p. 312.) No witness testified that the truck driver attempted to break to avoid the collision. (Id. at p. 313.) The appellate court found "[no] evidence from which a reasonable jury could have concluded that defective brakes, rather than [the truck driver's] failure to see [the motorcyclist] approaching the intersection, was the probable cause of the accident." (Id. at p. 314.)
Here, plaintiffs do not raise a triable issue of material fact supporting the inference that the assumed dangerous condition of public property caused the Collision.[ Without citation to any evidence, plaintiffs state that they "showed that the Subject Location was a substantial factor in the causation of the accident" or at least that "their presentation of causation was a reasonable conclusion." Plaintiffs failure to cite any evidence is fatal to their argument they raised a triable issue of material fact with respect to causation. (Lewis v. County of Sacramento, supra, 93 Cal.App.4th at p. 116 [appellate court is not required to cull through the record to uncover triable issues of fact].)
In their reply brief, plaintiffs argue that the City did not shift the burden to plaintiffs to show a triable issue of material fact. "[A]bsent justification for failing to present an argument earlier, we will not consider an issue raised for the first time in a reply brief." (Save the Sunset Strip Coalition v. City of West Hollywood (2001) 87 Cal.App.4th 1172, 1181, fn. 3.) In any event, we conclude that the City shifted the burden to plaintiffs by pointing out that plaintiffs presented no evidence that the alleged dangerous condition caused the Collision.
In any event, the evidence in the record supports only the conclusion that the assumed dangerous condition of public property did not cause plaintiffs' injuries. The undisputed evidence showed that Brown knew of the traffic signal at the Intersection and clearly observed it just prior to the Collision. Brown testified that he had no "difficulty navigating the intersection" and plaintiffs presented no contrary evidence.
Although in theory an expert may identify a causal factor unknown to Brown, here plaintiffs offered no evidence linking the above-described dangerous condition to the Brown/Borja collision. There was no evidence that the trapezoidal shape of the Intersection and adjacent property prevented Brown from seeing the traffic signal at the Intersection or otherwise impacted his ability to navigate the Intersection. Plaintiffs offered no evidence supporting the inference that the layout of the Intersection and the adjacent intersection at Almaden and Alma impeded Brown even if the conditions required him to turn his head beyond the typical rotational range and even if an inattentive driver or one unfamiliar with the intersection may have difficulty navigating it. Plaintiffs offered no evidence supporting the inference that the green arrow on Almaden followed by a red light on Alma contributed to Brown's collision with Borja. As in Bowman, plaintiffs offered no "direct evidence" linking the Collision to the dangerous condition. (Bowman, supra, 186 Cal.App.4th at p. 312.)
Finally, we recognize that Yates averred, "[T]he proximity and layout of the adjacent intersections and the coordinated phasing of their traffic signals played causal roles in the driver of the Nissan vehicle entering the intersection against a red light and impacting the Borja Chevrolet." Yates, however, offered no factual basis for his opinion and failed to consider the undisputed facts that Brown was aware of the traffic signal at the Intersection and had no difficulty navigating the Intersection. If, as here, the expert's" 'opinion is not based upon facts otherwise proved, or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence.' [Citation.]" (People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 83; see also Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775 [expert opinion on causation "resting solely on speculation and surmise is inadequate to survive summary judgment"]; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 ["when an expert's opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value"].) At the summary judgment stage, a party opposing summary judgment cannot rely on an expert's declaration that is"' "purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion ...."' [Citation.]" (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 781.)
In sum, the evidence interpreted in the light most favorable to plaintiffs would not allow a reasonable trier of fact to conclude that the alleged dangerous condition caused plaintiffs' injuries. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 ["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 applicable standard of proof."].) The City demonstrated that plaintiffs cannot establish causation, a necessary element of their cause of action for dangerous condition of property. (Webster, supra, 26 Cal.App.5th at pp. 287-288.) As previously noted, plaintiffs do not challenge the summary adjudication of their negligence cause of action and have thus abandoned it. (Walker v. Sonora Regional Medical Center (2012) 202 Cal.App.4th 948, 957-958, fn. 6.) Given that the trial court did not err in summarily adjudicating the only remaining cause of action before it, we affirm entry of summary judgment in favor of the City.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: ROTHSCHILD, P. J., WEINGART, J.