Opinion
E053021 Super.Ct.No. CIVVS1003662
11-15-2011
SUSAN WALLACE, a Minor, etc., Plaintiff and Appellant, v. CITY OF VICTORVILLE, Defendant and Respondent.
Law Offices of Edgardo M. Lopez and Edgardo M. Lopez for Plaintiff and Appellant. Graves & King, Patrick L. Graves, Harvey W. Wimer III and Dennis J. Mahoney for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Affirmed.
Law Offices of Edgardo M. Lopez and Edgardo M. Lopez for Plaintiff and Appellant.
Graves & King, Patrick L. Graves, Harvey W. Wimer III and Dennis J. Mahoney for Defendant and Respondent.
Plaintiff and appellant Susan Wallace (Wallace), via her guardian ad litem, sued defendant and respondent City of Victorville (the City) for dangerous condition of public property. (Gov. Code, § 835.) The lawsuit emanated from a car accident. The trial court sustained the City's demurrer without leave to amend. Wallace raises three arguments on appeal. First, Wallace contends her prelitigation tort claim gave the City adequate notice it was liable for her injuries. Second, Wallace asserts the first amended complaint set forth sufficient facts to support the dangerous condition cause of action. Third, Wallace contends the City erred by basing its demurrer on City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21 (San Diego). We affirm the judgment.
All further statutory references will be to the Government Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
1. FACTS
The facts in this subsection are based on the factual allegations contained in Wallace's first amended complaint. On May 22, 2009, about 2:20 a.m., Sindy Lisbeth Villacorta (Villacorta) was driving a Nissan pickup truck. Wallace was a passenger in Villacorta's pickup truck. Villacorta stopped the pickup truck on East Trail Street, which is a smaller street between El Evado Road and Highway 395 in the City, while waiting to make a left turn onto Mojave Drive. The left turn would have caused the pickup truck to be heading westbound on Mojave.
As Wallace made the left turn onto Mojave Drive, two cars—a black sedan and a BMW—were racing eastbound on Mojave at 80 to 90 miles per hour. When the pickup truck entered the intersection, it was struck by the BMW. The BMW pushed the pickup truck approximately 200 feet from the intersection of Mojave and East Trail. Villacorta died as a result of the crash. Wallace suffered serious injuries and was permanently disabled as a result of the crash.
2. CAUSE OF ACTION
Wallace's cause of action for dangerous condition of public property (§ 835) included the following allegations: The City owned and controlled the area of Mojave Drive, between El Evado Road and Highway 395. Mojave was defective in that (1) it did not have adequate lighting; (2) there were no signs warning of the high frequency of illegal street races; (3) the width of the shoulder was inadequate; (4) the roadway markings were inadequate; (5) there was no warning of a dangerous condition; and (6) there were no safeguards "for the danger which would not be reasonably apparent to, and would not be anticipated by a person using due care."
Wallace further alleged that the City's police department was aware of the illegal street racing taking place on Mojave Drive, because it received frequent reports regarding serious and fatal car accidents in the area. Wallace asserted that the City was "directly responsible for the dangerous and defective design, construction, striping and lighting of the subject roadway." Wallace claimed that the unsafe road design, failure to provide warning signs, and failure to install proper traffic controls exposed Wallace to a dangerous condition.
B. TORT CLAIM
Prior to Wallace filing her lawsuit, she filed a government tort claim (the "tort claim") against the City. (§§ 900 et seq.) The tort claim was submitted on the City's form. The form included the following question: "How and under what circumstances did damage or injury occur? Specify the particular occurrence, event, act or omission you claim caused the injury or damage (use additional paper if necessary)." In response, Wallace wrote, "On May 22, 2009, at about 2:20 a.m., [Wallace] was a passenger of [a] vehicle driven by . . . Villacorta (deceased) while on their way home; they entered the Mojave Drive from East Trail and was struck by a speeding vehicle eastbound on Mojave Drive driven by Arturo Rodriguez. As a result of the collision, the vehicle wherein [Wallace] was a passenger, was pushed or dragged for over 200 feet from the intersection of Mojave Drive and East Trail causing the death of the vehicle's driver and life threatening injuries to [Wallace]."
The next question on the form asked: "What particular action by the City, or its employees, caused the alleged damage or injury?" Wallace responded, "Despite the occurrences of fatal accidents before and after May 22, 2009, the City of Victorville failed to set measures appropriate to control and stop events of illegal car racing resulting to vehicles overspeeding on the long stretch of Mojave Dr[ive] from Highway 395 to El Evado Road. It is also known to [the] Victorville Police Department and the City Manager's Office of Victorville how dangerous this stretch is being a favorite and conducive place for illegal car racers and speedsters that caused fatalities not only to participants but also to innocent motorists."
Another portion of the form requested: "Give the name(s) of the City employee(s) causing the damage or injury." Wallace responded, "There is no specific employee of the City; but it is the City of Victorville and the council members' failure to take measures to stop illegal car racing and speeding motorists that caused injuries and fatalities to [the] general public or motorists frequently or occasionally using Mojave Drive."
C. DEMURRER
The City demurred to Wallace's first amended complaint. The City asserted Wallace's dangerous condition of public property cause of action did not reflect the tort claim raised to the City as a prerequisite to the lawsuit. The City asserted that in the tort claim, Wallace alleged the City "failed to set measures appropriate to control and stop events of illegal car racing." The City argued the tort claim reflected a cause of action for negligence, but not for dangerous condition of public property or any physical defect in Mojave Drive. The City asserted Wallace's failure to allege a dangerous condition meant she was barred from raising the cause of action in her lawsuit. (§ 945.4.)
In another argument, the City cited San Diego, supra, 137 Cal.App.4th 21, and asserted the "Fourth District Court of Appeal has previously considered the issue of a dangerous condition of public property in the context of injury to nonparticipants in an illegal street race." The City summarized the San Diego case. In San Diego, a car turning across an intersection was struck by a car engaging in an illegal street race. The surviving victim and relatives of the deceased victim sued the City of San Diego for dangerous condition of public property. The plaintiffs alleged the site of the accident had been a frequent scene for illegal street races since 1992; the road was poorly lit; and there were no traffic controls, such as speed bumps, to deter street racing. (Id. at pp. 23-24.) The City of San Diego filed a motion for summary judgment. (Id. at p. 24.)
The trial court denied the City of San Diego's motion for summary judgment, finding, "whether a given set of facts or circumstances creates a dangerous condition is generally a question of fact." (San Diego, supra, 137 Cal.App.4th at p. 24.) The trial court concluded that there was triable issue of fact because the poorly lighted street may have made it appear that traffic was approaching much slower than it actually was. The City of San Diego petitioned for a writ of mandate directing the trial court to enter summary judgment in its favor. (Id. at pp. 24-25.)
The appellate court issued the writ. (San Diego, supra, 137 Cal.App.4th at p. 32.) The appellate court concluded that lighting was "a preventative safety measure," and therefore poor lighting "does not describe a defective physical condition." (Id. at p. 31.) The appellate court reasoned that if the road were safe when used legally, then it was not possible to determine how much lighting was necessary to protect motorists from people breaking the law. (Ibid.) In a secondary analysis, the appellate court relied on the rule that "the defect in the physical condition of the property must also have some causal relationship to the third party conduct that actually injures the plaintiff. [Citation.]" (Id. at p. 30, italics omitted.) The appellate court reasoned, "even if we were to conclude a defective physical condition exists for failure to install lighting, there is no evidence the racers were influenced by the absence of street lights." (Id. at p. 31.)
The City argued the instant case was similar to San Diego. The City asserted the first amended complaint did not connect the alleged inadequate street lighting or lack of traffic controls to the third party conduct of the street racers. The City contended, "Therefore, as a matter of law, the alleged defects do not, as a matter of law, suffice to allege that [Wallace's] injury resulted from a dangerous condition of public property."
Further, the City asserted it was immune from liability for failing to enforce laws. (§ 845.) Thus, to the extent Wallace was arguing that the City failed to enforce the street racing laws, Wallace's lawsuit must fail.
D. OPPOSITION TO THE DEMURRER
Wallace opposed the City's demurrer. Wallace asserted that she properly pled all the elements of a "dangerous condition of property" cause of action. Wallace argued she only needed to establish "that a condition of the public property creates a substantial risk to any foreseeable user of the property who uses it with due care." Wallace argued the inadequate lighting, lack of traffic controls, and unabated street racing created a "systematic failure" that subjected all motorists on Mojave Drive to a substantial risk.
Further, Wallace contended the San Diego case was distinguishable from the instant case, because the San Diego court "did not find concurring inherent defects in the roadway, which inherent defects are present in [Wallace's] case." Wallace argued that, unlike in San Diego, her injuries and resulting brain damage were caused by the inadequate lighting, absence of warning signs, rampant illegal street racing, and inadequate traffic controls.
As to the involvement of third parties, Wallace asserted, "A third party's negligent use of public property does not negate the existence of a dangerous condition of public property . . . ." Wallace argued that if the third party's negligence was foreseeable, then the "third party conduct may be the very risk which makes the public property dangerous when considered in conjunction with some particular feature of the public property."
As to the City's argument it was immune from liability for failure to enforce the law (§ 835), Wallace argued that "[I]ntervening criminal conduct cannot absolve a public entity of liability where a tort claimant alleges that the public entity maintained the property in such a way as to increase the risk of criminal activity. [Citation.]" Further, Wallace conceded that the failure to provide traffic controls did not itself create a dangerous condition (§ 830.4); however, Wallace asserted that a public entity could still be liable for failing to provide a sign when the dangerous condition could not reasonably be anticipated by a person exercising due care.
Next, Wallace asserted the tort claim was not solely based on the City failing to provide enough police to prevent illegal street racing. In other words, her complaint was not entirely based upon the City's failure to enforce the law. Wallace explained her case involved allegations of defective road conditions, such as inadequate lighting, lack of warning signs, and lack of traffic controls. Wallace asserted that the lack of police protection was just one component of the overall total circumstances that created the dangerous condition.
In regard to the Government Tort Claims Act, Wallace argued that the tort claim set forth the facts of the crash with sufficient particularity to put the City on notice per due process requirements. Wallace explained that the causes of action in the complaint "concur" with the facts set forth in the tort claim.
E. HEARING
On December 21, 2010, the trial court held a hearing on the City's demurrer. The trial court stated its tentative ruling was to sustain the demurrer without leave to amend, because the complaint needed to be based upon the same facts set forth in the tort claim, and the tort claim focused on a lack of police enforcement; whereas the cause of action alleged dangerous road conditions on Mojave Drive, such as inadequate lighting.
The trial court stated it felt the first amended complaint set forth sufficient facts to support the dangerous condition cause of action, but the tort claim did "not make a claim for those types of defects, and for that reason the Court believes that the demurrer ought to be sustained without leave to amend."
Wallace argued the claim form submitted to the City was sufficient to inform the City that Mojave Drive was affected by dangerous conditions. Wallace asserted the tort claim and the complaint did not need to be mirror images of one another. The trial court quoted the tort claim, which reflected, "'The City of Victorville failed to set measures adequate to control and stop events of illegal car racing . . . resulting to vehicles over speeding on the long stretch of Mojave Drive." The trial court concluded, "The language . . . used in the tort claim does not, and I don't see how it could . . . by any stretch of the imagination, put them on notice of inadequate signage . . . ."
Wallace asserted that the lack of police enforcement was one component of the dangerous condition on Mojave Drive, and therefore the first amended complaint was consistent with the tort claim. The trial court asked how a lack of police enforcement was related to "defective design, construction, striping and lighting of the subject roadway." Wallace explained that those things taken together with the lack of police enforcement created the dangerous condition.
The trial court sustained the demurrer without leave to amend. The trial court explained that Wallace "basically presented the [tort] claim where the [City's] liability was predicated solely on the failure to provide adequate police protection. And . . . the public entity is immune from that. And I don't believe [the tort claim] can be reasonably read as presenting a claim that the physical property owned by the City was dangerous."
DISCUSSION
A. TORT CLAIM
1. CONTENTION
Wallace contends the trial court erred by sustaining the demurrer because the tort claim sufficiently set forth a cause of action for dangerous condition of public property. We agree as to only a single allegation, but conclude that single allegation fails as a matter of law.
2. STANDARD OF REVIEW
"On appeal, we review the trial court's sustaining of a demurrer without leave to amend de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law. [Citations.] We assume the truth of properly pleaded allegations in the complaint and give the complaint a reasonable interpretation, reading it as a whole and with all its parts in their context. [Citations.]" (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 506.)
3. TORT CLAIM LAW
Section 945.4 provides: "Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . . ."
The purpose of requiring prelitigation claims is "'to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.' [Citation.] Consequently, a claim need not contain the detail and specificity required of a pleading, but need only 'fairly describe what [the] entity is alleged to have done.' [Citations.] As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions [citation], the claims statute 'should not be applied to snare the unwary where its purpose has been satisfied' [citation]." (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446.)
A "complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.' [Citation.] [¶] The claim, however, need not specify each particular act or omission later proven to have caused the injury. [Citation.] A complaint's fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an 'entirely different set of facts.' [Citation.] Only where there has been a 'complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim,' have courts generally found the complaint barred. [Citation.] Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint. [Citation.]" (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority, supra, 34 Cal.4th at p. 447.)
4. ANALYSIS
In the tort claim, Wallace asserted the City "failed to set measures appropriate to control and stop events of illegal car racing resulting to vehicles overspeeding on the long stretch of Mojave Dr[ive] from Highway 395 to El Evado Road."
We now turn to Wallace's cause of action for dangerous condition of public property, and examine her allegations. First, Wallace asserted Mojave Drive was defective due to inadequate lighting. It is unclear how adequate lighting would "control and stop events of illegal car racing," because lighting would not slow a car or stop a race, in the manner of a stop sign or speed bump. Thus, it appears the inadequate lighting allegation is a shift in the allegations presented in the tort claim.
Second, Wallace asserted the City failed to provide "signs indicating a high frequency of dangerous illegal street racing." Such signs may have warned non-racers of the possible dangers on Mojave Drive, but would not have controlled or stopped illegal car races, in the manner of a stop light or possibly a flashing radar speed sign. Since there is nothing indicated that the warning signs would have stopped or controlled illegal street racing, it appears the allegation constitutes a shift in the allegations raised in the tort claim.
Third, Wallace alleged the City was liable due to a "lack of an adequate shoulder width." It is unclear how an adequate shoulder width would have stopped or controlled illegal street racing. A wider shoulder may perhaps have protected non-racers by providing a space to avoid the racers, but it does not seem such measures would stop the illegal racing. Thus, the allegation is a shift from the allegations raised in the tort claim.
Fourth, Wallace asserted the City failed to provide "an adequate travel lane width." Again, it is unclear how the width of the travel lane corresponds with controlling or stopping illegal street racing. Wider lanes may perhaps have protected non-racers, but Wallace did not allege in the tort claim that the City failed to provide measures to protect people from street racing, rather, she asserted the City failed to control or stop street racing. Thus, Wallace shifted her allegations from preventing street racing to protecting people from ongoing street races.
Fifth, Wallace alleged the City failed to provide "adequate roadway markings." It is unclear what, if any, roadway markings would control or stop illegal street races. Thus, by alleging a wrong that does not seemingly relate to preventing street racing, Wallace has shifted her allegations from those raised in the tort claim.
Sixth, Wallace alleged the City failed "to warn of a dangerous condition." Again, warning signs may perhaps have protected non-racers, but would not have prevented illegal street racing. By shifting the allegations from prevention to protection, Wallace has premised the City's liability on different failures than those presented in the tort claim.
Seventh, Wallace asserted the City was liable for failing "to provide safeguards (as set forth in . . . Section 830(b)) for the danger which would not be reasonably apparent to, and would not be anticipated by, a person using due care." Section 830 provides definitions for various terms used in statutes. Section 830, subdivision (b), defines "protect against" as including "repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition." It appears Wallace is again alleging a failure to provide warning signs. As set forth ante, warning signs may protect non-racers, but would not control or stop illegal street racing. Thus, Wallace shifted the premise of liability from prevention to protection, which is problematic because the cause of action is not predicated on the same fundamental actions or failures as those set forth in the tort claim.
Two paragraphs after the foregoing allegations, but still within the cause of action section of the first amended complaint, Wallace asserts, "Because of the inadequate lighting, the unsafe road design, the failure to install traffic controls and the failure to provide warning signs, the driver of the Nissan and [Wallace] were exposed to a very dangerous condition." We have already addressed the alleged inadequate lighting and failure to provide warning signs. Thus, we address the road design and lack of traffic controls.
In regard to the alleged design defect, we return to the language of the tort claim, which asserted the City "failed to set measures appropriate to control and stop events of illegal car racing." A design defect of Mojave Drive is a different premise for liability than failing to "set measures," because it asserts errors by the people who designed the road. Since the tort claim focuses on the errors of the people that failed to "set measures" to control illegal street racing once the road existed, the design defect claim focuses on alleged errors that took place at a completely different time and place than those alleged in the tort claim.
Next, we address the failure to install traffic controls. We infer that Wallace is alleging a failure to install stop signs and traffic signals, because such traffic controls could have prevented illegal street racing. This allegation comports with the theory of liability presented in the tort claim, because it relates to preventing street races. However, "[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." (§ 830.4; Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439; see also Paz v. State of California (2000) 22 Cal.4th 550, 561 ["[C]ities generally have no affirmative duty to install traffic control signals."].) Thus, the City cannot be held liable for failing to provide such traffic controls. Therefore, even though this allegation comports with the tort claim, the demurrer was properly granted because the lack of regulatory traffic controls is not a dangerous condition as a matter of law.
In sum, all but one of Wallace's allegations were premised on different types of omissions than those asserted in the tort claim, e.g., omissions related to protecting the public versus omissions related to preventing street racing. The one allegation that did somewhat relate to preventing street racing failed as a matter of law. Therefore, we conclude the trial court did not err by sustaining the demurrer.
In Wallace's opening brief, she contends: "[t]he mention of the police department and the city manager in the [tort] claim was to convey that [the City] was put on notice of the dangerous condition of the long stretch of Mo[j]ave Drive which was frequented by illegal car racers and speedsters causing fatalities to participants and bystanders . . . ." It is unclear how "mention[ing] the police department and the city manager" would inform the City that Wallace was premising the City's liability on a failure to provide lighting, warning signs, and traffic controls. Wallace does not explain how a reference to the police department and the city manager equates with traffic controls. Thus, we find Wallace's argument to be unpersuasive.
B. SUFFICIENCY OF THE FACTUAL ALLEGATIONS
Wallace asserts the first amended complaint set forth sufficient facts to constitute a cause of action for dangerous condition of public property. We have already concluded there were proper reasons for sustaining the City's demurrer. Thus, any decision we make on this remaining contention will not affect the outcome of this appeal, because the trial court's ruling must be affirmed. Accordingly, we do not analyze Wallace's remaining contention, because it is moot. (See Bay Area Cellular Telephone Co. v. City of Union City (2008) 162 Cal.App.4th 686, 700 [not addressing a remaining contention that was rendered moot].)
C. RELIANCE ON THE SAN DIEGO CASE
Wallace asserts the City erred by relying on the San Diego case, because San Diego concerns a motion for summary judgment, while the instant case concerns a demurrer. (San Diego, supra, 137 Cal.App.4th at p. 24.) It is unclear how this contention relates to the trial court's ruling, because the trial court's ruling was based on the tort claim not matching the complaint, i.e., the trial court's ruling was not based on the San Diego case. Thus, it appears that if we were to agree with Wallace, then there would be no impact on the trial court's ruling, because Wallace is only contending that the City erred, not the trial court. Since the contention could not result in the reversal of the trial court's ruling, we decline to discuss it any further. (See Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1150 [appellant did not argue the trial court erred; therefore the appellate court would not reverse the judgment].)
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur: RAMIREZ
P. J.
HOLLENHORST
J.