Opinion
E082840
04-15-2024
THE STATE OF CALIFORNIA, DEPARTMENT OF TRANSPORTATION, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; ZELGAI GULZARZADA, Real Party in Interest.
Erin E. Holbrook, Chief Counsel, Jerald M. Montoya, Deputy Chief Counsel, and Maryam Azizi for Petitioner. No appearance for Respondent. No appearance for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Super.Ct. No. CIVSB2113819, Jeffrey Erickson, Judge. Petition granted.
Erin E. Holbrook, Chief Counsel, Jerald M. Montoya, Deputy Chief Counsel, and Maryam Azizi for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
OPINION
MILLER ACTING P.J.
Real party in interest Zelgai Gulzarzada (Plaintiff) sued petitioner State of California (Caltrans) alleging a dangerous condition of public property. (Gov. Code, § 835.) Caltrans moved for summary judgment. The trial court denied the motion. Caltrans is petitioning this court for a writ of mandate directing the trial court to set aside its denial of the motion and grant summary judgment. We grant the petition.
Plaintiff also sued the City of Colton and the San Bernardino Valley Municipal Water District. However, the claims against them are not part of this writ proceeding.
FACTS
A. COMPLAINT
In his complaint, Plaintiff alleged that on May 8, 2020, "Plaintiff was driving his Toyota Camry westbound on I-10, east of Mount Vernon Avenue, within the #4 lane when his vehicle hit a large puddle of water and began to hydroplane. Plaintiff lost control of his vehicle due to the water on the I-10 roadway . . . and veered off the road and hit a sign on the embankment and sustained injuries." Plaintiff asserted Caltrans was obligated to maintain and service the waterpipes along westbound Interstate 10. On Plaintiff's form complaint, he failed to mark a box alleging if Caltrans had either actual or constructive notice of the water on the road.
B. EVIDENCE
1. HIGHWAY PATROL COLLISION REPORT
A Highway Patrol report of the collision reads, "Upon my arrival on scene the #4 lane was flooded with water, and there was water flowing up from a drain on the shoulder. I walked up the Mount Vernon Ave on-ramp and observed water pouring out of several drains on the on-ramp and into another drain that was flooding the main line of the freeway. Upon further inspection I observed a water main north of the retaining wall on the on-ramp that was leaking water. Caltrans was contacted and was able to water shut off [sic] and stop the flooding."
The report continues, "[Plaintiff] was driving [his car] westbound on I-10, east of Mount Vernon Ave., within #4 lane at 50-55 MPH. He suddenly hit a large puddle of water and began to hydroplane and lose control of [his car]. He veered off to the right and hit a sign that was on the embankment." The report concludes, "This collision occurred due to the roadway being flooded"; "[Plaintiff] had no reasonable expectation for the roadway to be flooded due to a broken water main."
2. MALOUF DECLARATION
Matthew Malouf has been "a Lead Worker in the Division of Traffic Operations in the Transportation Management Center . . . in [Caltrans] District 8" since 2011. Malouf searched for records of "leaks and water pooling on the roadway" for May 7, 2020, through May 8, 2020. Malouf found that Plaintiff's collision occurred on May 8, 2020, at 2:11 a.m., and "the issue was resolved by the State's maintenance crews by 3:47 a.m., on May 8, 2020."
3. WORK LOGS
Caltrans provided 285 pages of its work logs covering May 8, 2017, to May 8, 2020, for a two-mile area around the collision site. The work log notes activities such as graffiti removal, mowing grass, and inspections. It also includes entries such as the following: "06/03/17 David sent to repair broken irrigation WB 10 Rancho off ramp/on ramp. 06/06/17 Various locations including Tippecanoe off and on ramps e/b 6th st off and on broken sprinkler complaints. 6/7/17 repaired leaking valve and broken sprinklers e/b Tippecanoe on ramp and Waterman ramps repaired broken sprinklers left side of circle on ramp. 6/8/17 Met with David Water Manager/Landscape Specialist at the Waterfall trouble shooting shut off for pumps and irrigation system."
4. SPECIAL INTERROGATORIES
Caltrans propounded special interrogatories. The following are some of the interrogatories and Plaintiff's responses:
"INTERROGATORY NO. 12:
"State all facts upon which YOU base YOUR contentions of liability against the State of California.
"RESPONSE TO SPECIAL INTERROGATORY NO. 12:
"N/A"
"INTERROGATORY NO. 14:
"IDENTIFY all DOCUMENTS known to YOU which RELATE TO the facts upon which YOU base YOUR contentions of liability against the State of California.
"RESPONSE TO SPECIAL INTERROGATORY NO. 14:
"N/A"
C. MOTION FOR SUMMARY JUDGMENT
In moving for summary judgment, Caltrans asserted, "Plaintiff's Premises Liability cause of action fails to check off either box (a) or (b) clarifying whether the dangerous condition claimed was one for which [Caltrans] had actual or constructive notice .... [Citation.] Plaintiff's factually devoid discovery responses provide no further clarification, and instead concede that Plaintiff has no basis for liability against the State." Caltrans continued, "Plaintiff has not-and cannot-show that the alleged dangerous condition of public property existed for any time prior to his subject collision, let alone an 'unreasonable length of time.' [Citations.] Thus, Plaintiff has not established the prima facie element of notice, as [Caltrans] had neither constructive nor actual notice of the alleged dangerous condition of water at the subject location until Plaintiff's collision."
D. OPPOSITION
In opposing the motion, Plaintiff asserted that a public entity has constructive notice of a dangerous condition "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." Due care involves whether there was "an inspection system that was reasonably adequate."
Plaintiff contended Caltrans's work log "shows a pattern whereby the main that caused the flooding on the I-10 preceding Plaintiff's accident repeatedly broke, compromising the I-10 freeway." Plaintiff listed specific incidents of broken sprinklers or water lines in the vicinity of the collision, a handful of them are: (1) "On September 1, 2018, maintenance was required to repair 'mainline of off ramp BO sprinklers flooding travel lanes' "; (2) "March 15, 2019, [work log] states, 'Dispatch call SR# 1258611 EB Mt. Vernon. Water all lanes. BO sprinklers."; (3) "On December 25, 2023, there was a main line break next to the shoulder Westbound on Etiwanda Ave."; and (4) "On February 18, 2020, there was a mainline water break which resulted in water and mud accumulating on the road surface." Plaintiff asserted the pattern of breaks in the irrigation system, in the vicinity of the collision site, created a triable issue of fact as to whether Caltrans had constructive notice.
E. REPLY
1. NOVELO'S DECLARATION
Caltrans provided the declaration of Carlos Novelo, "the Maintenance Area Superintendent for the District 8 Metro Region." Novelo declared, "Irrigation systems like the one at issue in this case exist underground. Inspection of such underground systems involves above-ground monitoring by the Landscape Crew. This is achieved by routinely driving through the roadway to assess for leaks." Novelo reviewed Caltrans's work logs for the three years prior to the collision and for the area "within .25 miles in either direction of Plaintiff's collision." Novelo found "the State inspected the roadway, including the collision location, on a near-weekly basis (at least 145 times). In fact, a Supervisor Area Inspection of the roadway, spanning postmiles 11.1 through 39 (which includes the collision location), took place just days before the subject collision. None of these inspections noted a break in the water main at the subject collision [sic]. In the five months preceding the subject collision, the maintenance crew assessed for and performed irrigation system repairs, monthly. No repairs were necessitated at the subject collision location."
2. POINTS AND AUTHORITIES
Caltrans contended (1) Plaintiff failed to provide an expert's declaration regarding the standard of care; (2) Plaintiff improperly relied on repairs performed on eastbound Interstate-10, when the collision occurred on the westbound side; (3) Plaintiff did not provide evidence connecting irrigation breaks in other locations to the break at issue in this case; and (4) there were no irrigation breaks at the site of the collision prior to the break that caused the collision.
F. HEARING
The trial court found there was "a disputed fact as to whether [Caltrans] had notice or not." The court said, "[W]hat they knew [and] when is to be proved at the time of trial in terms of the dispute."
Caltrans argued, "But now we're about two and a half years into this case, and there's been no evidence propounded by plaintiff regarding that notice that counters this." Caltrans asserted Plaintiff had a theory, but no evidence, to create a dispute.
Plaintiff responded, "It's not just the lack of notice of water or any flood on the freeway, it's notice of any improperly working, improperly inspected, improperly maintained sprinkler system along the roadway that they've known about, actual and constructive notice, for a long period of time leading up to this particular incident. But it's not simply notice of the water on the roadway at 2:00 a.m. on May 20th-or May of 2020, it's the buildup to it as well."
The trial court said, "[M]any times [Caltrans] went out and repaired things and the like, the sprinkler systems and the like. [¶] I'm going to rule there is a triable issue of fact." The trial court denied the motion for summary judgment.
DISCUSSION
Caltrans contends the trial court erred by denying the motion for summary judgment because there is not a triable issue of fact on the element of notice.
"A writ of mandamus will issue when the denial of a motion for summary judgment results in a trial on a nonactionable claim. [Citation.] We independently review summary judgment motions." (LeFiell Manufacturing Co. v. Superior Court (2014) 228 Cal.App.4th 883, 891.) "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
Actual or constructive notice is an element of a cause of action for a dangerous condition of public property. (Gov. Code, § 835, subd. (b).) In the motion for summary judgment, Caltrans noted that, in his complaint, Plaintiff failed to make an allegation pertaining to the element of notice. Caltrans also noted that, in discovery, Plaintiff failed to allege facts that would have illuminated the issue of notice. By pointing to Plaintiff's lack of allegations and lack of substantive discovery responses pertaining to the element of notice, Caltrans met its burden of demonstrating the nonexistence of a triable issue of material fact on the element of notice.
In opposing the motion, Plaintiff asserted Caltrans had constructive notice of the dangerous condition. "A public entity had constructive notice of a dangerous condition . . . 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." (Gov. Code, § 835.2, subd. (b).) Plaintiff did not present evidence of how long the collision site was flooded or how long the water main was broken. Therefore, there is no evidence establishing that the flood or the break existed for such a period of time and were sufficiently obvious that Caltrans should have been aware of it.
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." (§ 835.2, subd. (b).)
Plaintiff did not present an expert's opinion regarding the condition of the irrigation system or the sufficiency of Caltrans's inspection routine. Thus, there was no evidence regarding Caltrans failing to meet the appropriate standard of care.
Plaintiff did not respond to our order to show cause, but at the trial court's hearing on the motion, he asserted there was a pattern of leaks and breaks that demonstrated constructive notice. To support that theory, Plaintiff needed to provide evidence indicating that the leaks and breaks in other places would have led a reasonably prudent person to discover the break at the collision site, e.g., an expert opinion regarding the irrigation system or that the system should have been inspected on a more frequent basis."' "[P]roof of negligence in the air, so to speak, will not do." '" (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) Simply noting that there were leaks and breaks in the vicinity does not create a triable issue of fact concerning constructive notice of the condition at the site of the collision.
In sum, Plaintiff failed to present evidence that Caltrans had constructive notice of the broken water main or the flood. Accordingly, we will grant the writ petition.
DISPOSITION
Let a writ of mandate issue directing the Superior Court of San Bernardino County to vacate its order denying summary judgment on the dangerous condition of public property cause of action and enter an order granting Caltrans's motion for summary judgment. Caltrans is awarded its costs of this writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
We concur: RAPHAEL J., MENETREZ J.