Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County No. GIN048387, Michael B. Orfield, Judge.
NARES, J.
In this personal injury action for negligence, plaintiff Ryan Geib (Geib) by and through his guardian ad litem Dirk Geib, appeals grants of summary judgment in favor of defendants Charles Posladek, Tony Cacatian III, Glen and Lydia Furtado (together the Furtados), Lester Taylor II and Mary Taylor (together the Taylors), and Gerald and Stephanie Gilbert (together the Gilberts) (collectively defendants). The basic facts are not in dispute. Defendants are unassociated real property owners in Valley Center (an unincorporated area of the County of San Diego) who all owned properties adjacent to or near Rolling Hills Drive, a north-south private road that intersects Old Castle Road, an east-west public road. Defendants had express or implied access easements over Rolling Hills Drive for ingress to and egress from their properties.
Defendant Joseph Tanalski was also granted summary judgment in this matter, and Geib appealed from that judgment. Geib notified this court he had reached a settlement with respect to all his claims against Tanalski, and by order dated February 8, 2008, at Geib's request, this court dismissed the appeal and issued a remittitur as to Tanalski.
Geib also named additional property owners who are not parties to the instant appeal.
Geib was severely injured one rainy evening when the car in which he was a passenger traveling southbound on Rolling Hills Drive was struck from the left side at the intersection of Rolling Hills Drive and Old Castle Road by another vehicle travelling westbound on Old Castle Road. There were no traffic signs, signals or control devices at that intersection. Geib brought an action for damages against defendants, alleging they negligently breached a duty to "install and maintain street and traffic control signs and signals on such roads," including Rolling Hills Drive. Defendants all brought summary judgment motions arguing they owed no legal duty to Geib. The court granted the summary judgment motions, finding (among other things) that as residents near the intersection and as easement holders, defendants owed no duty to install and maintain street and traffic control signs and signals as a matter of law. Geib appeals from the judgments entered in defendants' favor.
For reasons we shall discuss, we hold that defendants, as mere holders of nonexclusive ingress and egress easements over Rolling Hills Drive, owed no duty of care to Geib to install and maintain street and traffic control signs or signals on southbound Rolling Hills Drive because their easements are nonpossessory interests with no right of occupancy with supervisory control over that private road, and a weighing of the duty factors announced in Rowland v. Christian (1968) 69 Cal.2d 108, abrogated on another point in Bird v. Saenz (2002) 28 Cal.4th 910, 915 (Rowland) militates against the imposition of such a duty. Accordingly, we affirm the judgments.
FACTUAL BACKGROUND
A. Defendants' Properties and the Roads at the Intersection
Defendants are unassociated real property owners in Valley Center who at the time of the accident owned properties adjacent to or located near the intersection of Rolling Hills Drive and Old Castle Road. Rolling Hills Drive is a paved private road that runs north to south and ends in a "T" intersection at Old Castle Road. Old Castle Road is a paved, divided two-lane public road that runs east to west and is owned and maintained by the County of San Diego (the County).
Posladek's property (Assessor's Parcel No. 129-292-52, or parcel 52), which he purchased in June 2003, has a Rolling Hills Drive address, but is one parcel removed from Rolling Hills Drive, to the east of that road and northeast of the intersection, and is not adjacent to either Rolling Hills Drive or Old Castle Road. To reach his property, Posladek travels north on Rolling Hills Drive from Old Castle Road, and then turns east on the first private access road, which intersects Rolling Hills Drive less than 300 feet north of the intersection and leads to his property. Posladek has no ownership interest in any portion of Rolling Hills Drive.
Cacatian's property (parcel 50), which he purchased in 1995, is adjacent to Posladek's property and located on Rolling Hills Drive one parcel removed from the intersection, but Cacatian has no ownership interest in any portion of Rolling Hills Drive, and his deed shows he has an easement over that road for purposes of ingress and egress.
The Furtados' property (parcel 30), which Glen Furtado purchased in 1998, has a Rolling Hills Drive address and is located at the northwest corner of the intersection, and is thus adjacent to both Rolling Hills Drive and Old Castle Road. The Furtados have no ownership interest in any portion of Rolling Hills Drive.
The Taylors' property (parcel 40), which Lester Taylor purchased in 1994, also has a Rolling Hills Drive address but is not adjacent to that road or Old Castle Road. It is located northwest of the intersection, one parcel removed from Rolling Hills Drive and two parcels removed from Old Castle Road. The Taylors have no ownership interest in any portion of Rolling Hills Drive, but they have an easement over that road for purposes of ingress and egress.
Finally, the Gilberts' property (parcel 51), which they purchased in 1995, has a Rolling Hills Drive address, but (like Posladek's property, to which it is adjacent) is one parcel removed from Rolling Hills Drive to the northeast of the intersection, and is not adjacent to either Rolling Hills Drive or Old Castle Road. The Gilberts' deed conveyed to them an easement for ingress and egress over Rolling Hills Drive. The easement is described as 30 feet in width, or 15 feet on each side of the centerline of Rolling Hills Drive. It begins at the intersection and extends 160 feet north along Rolling Hills Drive. At the end of the 160 feet, the easement veers east to the right onto a dirt access road. Like the other defendants, the Gilberts have no ownership interest in any portion of Rolling Hills Drive.
B. The Accident
On a dark, rainy evening in early November 2003, Geib suffered a severe head injury when the Jeep Cherokee in which he was a passenger was struck by a westbound semi-tractor trailer at the intersection of Rolling Hills Drive and Old Castle Road (hereafter the intersection) in the unincorporated Valley Center area of the County. Geib's friend, James Schultz, was driving the Cherokee southbound on Rolling Hills Drive at the time of the accident. Two other friends were also passengers in the car. The four friends were leaving the home of another friend, Dan Meador, who lived off of Rolling Hills Drive. As Schultz was looking for Old Castle Road and driving up an incline southbound on Rolling Hills Drive with the headlights on, he saw headlights through the trees on the left side of the road, knew the intersection was ahead, and slammed on the brakes. The Cherokee came to a complete stop about a foot into the intersection. The approaching semi-tractor trailer hit the front left fender and wheel of the Cherokee, which rolled or spun very fast and ended up in a ditch down an embankment on the right side of westbound Old Castle Road. Geib, who was thrown from the car and landed on the shoulder of the road, suffered severe brain damage.
The traffic collision report prepared by a law enforcement officer who responded to the accident cited Schultz both as the primary cause of the collision for allegedly violating the basic speed law codified in Vehicle Code section 22350 (driving at a speed that was unsafe under the road conditions) and as an associated factor in causing the accident for allegedly violating Vehicle Code section 21804, subdivision (a) (failing to yield the right-of-way to traffic when entering a highway from a private road). According to Schultz's deposition testimony, he had driven Geib and the other two passengers to Meador's house earlier in the evening, when the sun was still up, by following Old Castle Road to northbound Rolling Hills Drive, and at the time of the accident he knew that Rolling Hills Drive was hilly and ended at Old Castle Road.
Sometime after the accident, the County placed a stop sign on southbound Rolling Hills Drive about 35 feet north of the intersection. The back of the stop sign states it is the property of the County.
PROCEDURAL BACKGROUND
In October 2004 Geib brought suit against the County and others (Geib v. DaimlerChrysler Corp. (Super. Ct. San Diego County, 2004, No. GIC837989) (DaimlerChrysler)), alleging a cause of action against the County for dangerous condition of public property under the California Tort Claims Act (specifically, Gov. Code, § 835). Geib sought to hold the County liable for failing to install road signs that would make the intersection safer for drivers on Rolling Hills Drive.
None of the defendants in the DaimlerChrysler case is a party to the instant appeal.
In November 2005 Geib brought a second action (Geib v. Furtado et al. (Super. Ct. San Diego County, 2005, No. GIN048387), which is the subject of the instant consolidated appeals, alleging a cause of action for negligence against defendants (and other real property owners who are not parties to these appeals). In paragraph 11 of his complaint, Geib alleged that defendants owned and maintained Rolling Hills Drive and part of the intersection and were "charged with the responsibility to install and maintain street and traffic control signs and signals on such roads." Geib also alleged the roads were "defective and negligently maintained in that any driver traveling southbound on Rolling Hills Drive (north of Old Castle Road) would not be aware or have adequate warning that a major intersection is just ahead of them." He further alleged that "from the point of view of [Schultz], the intersection . . . was dark, obstructed by tree branches and shrubbery, obscured due to the steep angle of Rolling Hills Drive," and "no road signs or stop signs warned [him] that he would soon approach the [intersection]," which was "not controlled by a stop sign, yield sign or traffic light." Because Schultz "did not know, and could not have reasonably known of the fact that he [was] about to enter a major [intersection] with a highway," the complaint alleged, Schultz, "who was exercising due care, was unable to avoid the [accident]."
The County brought a motion for summary judgment in the DaimlerChrysler case. In February 2006 the trial court denied the motion, finding that a triable issue of material fact existed as to whether the County had actual or constructive knowledge of the alleged dangerous condition at the intersection and noting that Geib had presented evidence that the County's road crews drove County-maintained roads every two weeks and "observed or should have observed" the view of a southbound driver on Rolling Hills Drive of the "T" intersection. Thereafter, the court entered an order consolidating the two cases pursuant to the parties' stipulation.
The Honorable Ronald S. Prager.
In two further rounds of summary judgment proceedings in this matter, defendants successfully brought summary judgment motions in which they argued that they owed no duty of care to Geib. In the first round, Posladek, Cacatian, and Tanalski (who, as already explained in fn. 1, ante, is no longer a party to these consolidated appeals) brought separate summary judgment motions on the grounds they did not owe Geib a duty to maintain the intersection as a matter of law because they had no ownership interest in Rolling Hills Drive or Old Castle Road, and the accident was not foreseeable because they had no notice of any prior motor vehicle accidents or dangerous conditions at the site of the accident.
In March 2007, following oral arguments, the court confirmed its tentative ruling granting Posladek's, Cacatian's, and Tanalski's summary judgment motions, finding "as a matter of law, on the undisputed facts of this case, that the holders of easements over Rolling Hills Drive had no duty to install and maintain street and traffic control signs and signals on such road." Citing Vehicle Code section 21465 (discussed, post) and City of El Segundo v. Bright (1990) 219 Cal.App.3d 1372, the court concluded the moving defendants had no duty to place a stop sign at the intersection as any such sign would be visible from Old Castle Road. The court also found as a matter of law that the duties of an easement holder did not include a duty to install a sign on Rolling Hills Drive out of view of Old Castle Road because such duties historically had only required easement holders to maintain their easements in their "natural/original condition." The court sustained Cacatian's objections to the declaration of Geib's traffic engineering expert Robert Crommelin, who opined that homeowners who had an access easement over Rolling Hills Drive had a duty to post appropriate warning signs such as "Intersection Ahead" along southbound Rolling Hills Drive. The court found Crommelin's declaration was "mainly speculative," it "attempt[ed] to make legal conclusions that are the province of the court," and it was "insubstantial" to the extent it was not otherwise objectionable. Weighing the duty factors set forth in Rowland, supra, 69 Cal.2d 108 (discussed, post), the court again concluded that Posladek, Cacatian, and Tanalski did not have a duty to install and maintain street and traffic control signs and signals on Rolling Hills Drive. Geib appealed the judgment entered in favor of those defendants.
The Honorable Michael B. Orfield.
In the second round of summary judgment proceedings, the Furtados, the Taylors, and the Gilberts brought separate summary judgment motions on essentially the same grounds raised by Posladek, Cacatian, and Tanalski in their summary judgment motions. In June 2007, after taking the three summary judgment motions under submission, the court confirmed its tentative ruling granting the motions, finding "as a matter of law, on the undisputed facts of this case, that as mere residents near the intersection of Rolling Hills Drive and Old Castle Road, and holders of easements for ingress and egress over Rolling Hills Drive, [the Furtados, the Taylors, and the Gilberts] had no affirmative duty to install and thereafter maintain street and traffic control signs and signals on Rolling Hills Drive as alleged in the Complaint, no duty to [Geib], and no liability for this injury." The court made additional findings similar to those it had made in granting the previous summary judgment motions brought by Posladek, Cacatian, and Tanalski. Geib appealed the judgment entered in favor of the Furtados, the Taylors, and the Gilberts.
The Honorable Michael B. Orfield.
By order dated August 29, 2007, this court granted Geib's unopposed motion to consolidate his two appeals in this matter.
STANDARD OF REVIEW
On an appeal from a grant of summary judgment, we "independently examine the record to determine whether triable issues of material fact exist." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In performing our de novo review, we view the evidence in a light favorable to the losing party (here, Geib), liberally construing his evidentiary submission while strictly scrutinizing the prevailing parties' own showing and resolving any evidentiary doubts or ambiguities in favor of the losing party. (Id. at p. 768.)
The parties moving for summary judgment (here defendants) bear the burden of persuasion that there is no triable issue of material fact and that they are entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A defendant [moving for summary judgment] bears the burden of persuasion that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' thereto." (Ibid.; Code Civ. Proc., § 437c, subd. (o).) In such a case, the defendant "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.)
If the moving defendants meet their burden of production, the burden shifts to the plaintiff (here Geib) "to make [his own] prima facie showing of the existence of a triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 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." (Ibid., fn. omitted.)
DISCUSSION
The principal issue presented here is whether defendants, as unassociated homeowners who own real property abutting or near Rolling Hills Drive, and who are holders of nonexclusive, express or implied easements for the use of that private road for ingress to and egress from their properties, owed a duty of care to Geib to install and maintain street and traffic control signs and signals on Rolling Hills Drive near its intersection with Old Castle Road, a public road. For reasons we shall explain, we hold on the undisputed facts of this case that defendants owed no such duty, and thus the court did not err in granting summary judgments in their favor.
A. Applicable Legal Principles
To prevail in an action for negligence, a plaintiff must plead and prove the following essential elements: (1) the defendant owed the plaintiff a legal duty of care; (2) the defendant breached that duty through a negligent act or omission; (3) the breach was a proximate or legal cause of plaintiff's injury; and (4) damages. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 (Ann M.); 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 537, p. 624.)
With respect to the element of duty in cases involving allegedly dangerous conditions on real property, the California Supreme Court has explained that "[t]he liability of a possessor of land no longer depends upon the 'rigid common law classifications' of trespasser, licensee, and invitee." (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1158, fn. 2 (Alcaraz), quoting Rowland, supra, 69 Cal.2d at p. 118.) Instead, the courts in California "'approach the issue of the duty of the occupier [of land] on the basis of ordinary principles of negligence.'" (Alcaraz, supra, at p. 1158, fn. 2, quoting Rowland, supra, at p. 118.) Citing Civil Code section 1714, the high court explained in Knight v. Jewett (1992) 3 Cal.4th 296, 315, that, "[a]s a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. [Citation.] Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property."
However, "'"[t]he duties owed in connection with the condition of land are not invariably placed on the person [holding title] but, rather, are owed by the person in possession of the land [citations] because [of the possessor's] supervisory control over the activities conducted upon, and the condition of, the land."'" (Alcaraz, supra, 14 Cal.4th at p. 1157-1158, quoting Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368, italics added.) In Preston v. Goldman (1986) 42 Cal.3d 108, 119, the Supreme Court stated that it places "major importance on the existence of possession and control as a basis for tortious liability for conditions on the land." (Italics added.)
In Alcaraz, the Supreme Court explained that "[t]he Restatement Second of Torts uses the phrase 'possessor of land,' rather than the terms 'owner' or 'lessee,' to describe who may be liable for injuries caused by a dangerous condition of land. (See, e.g., Rest.2d Torts, § 343, p. 215.) Section 328E (page 170) of the Restatement Second of Torts defines the term 'possessor of land' to include 'a person who is in occupation of the land with intent to control it.'" (Alcaraz, supra, 14 Cal.4th at pp. 1158-1159, italics added.) The Alcaraz court also explained that, "[i]n similar fashion, the Courts of Appeal have recognized that a defendant's potential liability for injuries caused by a dangerous condition of property may be based upon the defendant's exercise of control over the property. 'In common law parlance, the possessor of land is the party bearing responsibility for its safe condition. Possession, in turn, is equated with occupancy plus control. [Citations.] Thus, in identifying the party vulnerable to a verdict, control dominates over title. "The crucial element is control." [Citation.]'" (Alcaraz, supra, 14 Cal.4th at p. 1159, quoting Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 831, italics added.)
The Restatement Second of Torts, section 328E, page 170, states: "A possessor of land is [¶] (a) a person who is in occupation of the land with intent to control it or [¶] (b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or [¶] (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b)." (Italics added.)
The existence and scope of a duty of care are questions of law for the court to decide. (Alcaraz, supra, 14 Cal.4th at p. 1162, fn. 4, citing Knight v. Jewett, supra, 3 Cal.4th at p. 313).
B. Analysis
1. Duty to call the County
We first address Geib's assertion that "[w]ith regard to the trial court's holding that defendants had no duty to post a stop sign at the intersection under the Vehicle Code, this mischaracterizes [my] claim." Without citation to the record, Geib asserts he "never argued that [defendants] had a duty to post a stop sign themselves. Rather, he asserted they had a duty to request that the [County] post such a sign prior to the accident, instead of waiting until after the accident to do so." (Italics added.) Geib claims that, "[t]o the extent the court's decision is based on a mischaracterization of [my] position, it is in error."
Our de novo review of a summary judgment is limited to the issues framed by the pleadings since the allegations in the pleadings are the ones to which a summary judgment motion must respond. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252; Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.) "'The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.' [Citations.]" (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) Furthermore, we do not consider arguments on appeal unless they were raised below. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29 [alternate basis of liability not raised by appellant in opposing summary judgment motion below will not be considered on appeal]; accord, City of San Diego v. Rider (1996) 47 Cal.App.4th 1473, 1493.)
Here, the record shows Geib's complaint did not allege defendants had a duty prior to the accident to contact the County to request that it post a stop sign or other traffic control sign. The duty allegations set forth in paragraph 11 of Geib's complaint alleged that defendants owned and maintained Rolling Hills Drive and part of the intersection, and they were "charged with the responsibility to install and maintain street and traffic control signs and signals on such roads." Geib also alleged that Rolling Hills Drive and the intersection were "defective and negligently maintained" by defendants in that the intersection was "not controlled by a stop sign, yield sign or traffic light," and "any driver traveling southbound on Rolling Hills Drive (north of Old Castle Road) would not be aware or have adequate warning that a major intersection is just ahead of them."
The record also shows that Geib did not argue in his written oppositions to defendants' summary judgment motions that defendants' alleged duty in this matter was a duty to contact the County to request that it post and maintain a stop sign or other traffic control sign on Rolling Hills Drive. For example, in his opposition to Posladek's motion, Geib's principal argument was that defendants, as "property owners/easement holders owning and controlling the subject Rolling Hills Drive private roadway network," failed to install "appropriate warnings, signs and markings" on Rolling Hills Drive, and thereby failed to properly maintain that road. In his opposition to the Gilberts' summary judgment motion, Geib made a similar argument. Challenging the court's earlier ruling excluding the expert opinion testimony of his traffic engineering expert, Crommelin, Geib argued that Crommelin stated in his declaration that "defendants' failure to place the appropriate signage . . . substantially contributed to the cause of the accident . . . ." In sum, the record does not support Geib's claim that the summary judgments should be reversed on the ground the court erroneously mischaracterized his claim.
2. Duty to install traffic control signs and devices
In support of his claim that the court erred in holding as a matter of law that did not owe him a duty to install and maintain street and traffic control signs and signals on Rolling Hills Drive, Geib contends (a) "it was clear and prejudicial error for the court to grant summary judgment when [defendants] were asserting and continue to assert that they lacked control over their private roadway," because the issue of control is a factual issue for a jury's determination; (b) the court erred in finding under Rowland, supra, 69 Cal.2d 108, that no duty attached as a matter of law; and (c) defendants' argument that they were legally prohibited under Vehicle Code section 21465 from posting a warning or stop sign at the intersection is "a classic straw man argument." These contentions are unavailing.
a. Ownership and control of Rolling Hills Drive
Challenging what he refers to as defendants' "primary" argument that they owed him no duty of care because they lacked control over Rolling Hills Drive and relying on two out-of-state decisional authorities─Sanchez v. City of Tucson (1998) 191 Ariz. 128 [953 P.2d 168] (Sanchez) and Wemple ex rel. Dang v. Dahman (2004) 103 Hawai'i 385 [83 P.3d 100] (Wemple)─for the proposition that "the issue of control is a fact issue for the jury to decide," Geib suggests that the issue of control is always a factual issue for the trier of fact to decide. Thus, he contends, the court erred in granting the summary judgments in favor of defendants because he was entitled to a jury trial on the issue of control. We reject this contention.
Geib cites no authority, and we are aware of none, establishing that the issue of control is always a factual issue for the trier of fact to decide. The courts in California have held that, where the absence of control has been unequivocally established in cases involving allegedly dangerous conditions of land, no basis for finding a duty or imposing liability exists. (Preston v. Goldman, supra, 42 Cal.3d at p. 119; Martinez v. Pacific Bell (1990) 225 Cal.App.3d 1557, 1564; Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 666.)
Geib's reliance on Sanchez, supra, 953 P.2d 168 is misplaced. In Sanchez, pedestrians who were injured when they were hit by a truck while crossing an intersection on a portion of a state highway that passed through the City of Tucson sued the city alleging it had a duty to maintain the roadway in a reasonably safe condition and it breached that duty by failing to install a traffic light at the intersection. (Id. at p. 169.) The city successfully moved for summary judgment, claiming it did not have the authority to install traffic lights on the roadway as it was a state route maintained by the state. (Ibid.) In opposing the motion, the plaintiffs argued the facts would support a finding that the city had a duty to install a traffic light at the intersection because the city and the state exercised joint control over the intersection. (Ibid.) Noting that "[t]he issue of control or amount of control, unlike the issue of duty, is 'a question of fact which ordinarily should be left to the fact finder" (id. at p. 170, second italics added), the Arizona Supreme Court reversed the summary judgment, holding the plaintiffs had "presented sufficient probative evidence to raise a factual issue: a jury could reasonably find that the City exercised control over the roadway as part of its 'joint effort' with the State to alleviate traffic problems." (Id. at p. 172.) The plaintiffs' evidence showed that a traffic study conducted jointly by the city and the state indicated the city exercised control over the roadway, the state had approved installation of a traffic light that was to be erected by the city at the intersection, and the city and the state had entered into an intergovernmental agreement under which the city assumed responsibility for routine maintenance and operation of traffic lights on specified intersections of state routes within the city. (Id. at pp. 170-172.)
Sanchez does not support the proposition that the issue of control of land is always a question of fact, as Geib suggests. Sanchez recognizes only that the issue of control "ordinarily should be left to the fact finder." (Sanchez, supra, 953 P.2d at p. 170, italics added.) Furthermore, Sanchez is distinguishable because the plaintiffs who opposed the defendant's summary judgment motion in that case presented evidence showing a triable issue of material fact existed as to whether the defendant exercised control over the roadways in question. Here, as we shall discuss, post, Geib did not present such evidence. Sanchez is also inapposite because it did not involve the issue of whether unassociated property owners who merely hold ingress and egress easements over a private road owe a duty of care to third party drivers to post warning signs on the road.
Geib's reliance on Wemple is also misplaced. In that case a child, who was injured when she ran out from behind a parked car onto an unnamed privately owned road in the City and County of Honolulu and was struck by a truck, brought a negligence action against the owners of properties abutting or located in the vicinity of the private road, alleging they were negligent in their maintenance of the road by failing to place speed bumps and warning signs on the roadway. (Wemple, supra, 83 P.3d at pp. 102-103.) The undisputed facts showed that all but one of the defendant property owners owned fractional interests in the private road. (Id. at p. 104.) The intermediate appellate court affirmed the trial court's grant of summary judgment in favor of the defendants, concluding they did not control the privately owned road, and thus owed no duty to maintain or warn of a dangerous condition on the road, because the road had been platted on a subdivision map, counties were statutorily authorized to regulate traffic on private streets, and the City and County of Honolulu's council passed a traffic code asserting that statutory authority. (Id. at p.109.) The Supreme Court of Hawai'i reversed the grant of summary judgment, holding the intermediate appellate court "gravely erred in concluding as a matter of law that the Defendant Property Owners did not control the private roadway" because "[t]he issue of control of this roadway is a question of fact for jury determination." (Id. at p. 112.) The Wemple court reasoned that the mere fact the road was recorded on a plat did not necessarily establish that the defendants lacked control, and the adopted traffic code in question did not divest private owners of the right to regulate traffic on private roadways. (Id. at pp.109-110, 112.)
To the extent Wemple may have suggested that control of a private roadway is always a question of fact for jury determination, we decline to follow it. Furthermore, Wemple is inapposite because, like Sanchez, supra, 953 P.2d 168, it did not involve the issue of whether unassociated property owners who hold ingress and egress easements over a private road owe a duty of care to third party drivers to post warning signs on the road. Wemple is also factually distinguishable in that the undisputed facts in that case established that all but one of the defendant property owners owned fractional interests in the private road. Here, unlike in Wemple, there is no evidence that any of the defendants owned any portion of Rolling Hills Drive.
Geib acknowledged in his written oppositions to the summary judgment motions that defendants never exercised control over Rolling Hills Drive, Old Castle Road or the intersection. For example, as indicated by their separate statement of undisputed material facts, the Taylors presented evidence showing they had "never maintained or supervised the intersection at Rolling Hills Drive and/or Old Castle Road, cordoned it off, modified or altered it, or did anything else to exercise control over the intersection or to suggest that they considered that part of their own property." In his opposition statement of disputed and additional facts, Geib cited no evidence contesting those facts. Furthermore, in his opposition memorandum of points and authorities, Geib argued that the Taylors "admit they never exercised any control." Geib thus acknowledged the Taylors never exercised any control over Rolling Hills Drive.
In support of their summary judgment motion, the Gilberts also presented evidence they had never performed any maintenance or repairs on Rolling Hills Drive or the intersection, and never exercised any control over them. In his opposition statement of disputed and additional facts, Geib, without citing any evidence, purported to dispute these facts by asserting that "[b]y their mere use of the easement, the Gilberts have exercised control," and that, in any event, it was "legally insignificant [whether] they have or have not exercised control because as the owners of the easement, they are bound by law to keep it safe for use by third parties." (Italics added.) Geib's assertions are unavailing.
As already discussed, the duties of care owed in connection with the condition of land "'"are owed by the person in possession of the land [citations] because [of the possessor's] supervisory control over the activities conducted upon, and the condition of, the land."'" (Alcaraz, supra, 14 Cal.4th at pp. 1157-1158, italics added.) Possession of land, in turn, is equated with occupancy plus intent to control that land. (Id. at p. 1159; Rest.2d Torts, §§ 328E & 343, pp. 170 & 215.)
Mere use of an ingress and egress easement is not necessarily equated with possession of land with a claim of occupancy and supervisory control for purposes of determining whether the holder of the easement owes a duty of care to third persons. Witkin explains that "[a]n easement is an interest in the land of another, which entitles the owner of the easement to a limited use or enjoyment of the other's land. [Citations.] . . . [¶] An easement creates a nonpossessory right to enter and use land in another's possession . . . ." (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 382, p. 446, italics added.) Another leading commentator explains that "[a]n easement is an incorporeal interest in the land of another that gives the owner of the easement the limited right to use another's property or to prevent the property owner's use of his or her property. It is a nonpossessory restricted right to a specific use or activity on the land of another that is less than ownership but may be a permanent right or a right for a limited period of time. An easement . . . is imposed on the servient land to benefit the dominant tenement land." (6 Miller & Starr, Cal. Real Estate (3d ed. 2008) § 15:5, fns. deleted, italics added.)
Here, it is undisputed that defendants' access easements over Rolling Hills Drive were nonexclusive; other drivers were not excluded from using that private road. Geib acknowledged (as discussed, ante) that defendants never exercised control over Rolling Hills Drive, Old Castle Road or the intersection, and he presented no evidence showing defendants ever intended to control them.
Geib asserts "the owner of an easement owes a duty to ensure that the easement is safe for the use of third parties." In support of this assertion, Geib quotes from a leading California real estate law treatise, which states: "An easement owner has an interest in real estate and has the same duty and responsibilities to third persons who enter the premises as has any other property owner. Because the owner of an easement has a duty to maintain and repair the easement, he or she also must keep it free from any dangerous condition that might injure third persons who rightfully come on the easement." (6 Miller & Starr, Cal. Real Estate, supra, § 15:68, p. 220, fns. omitted.)
Under Civil Code section 845, subdivision (a), defendants, as owners of an access easement over Rolling Hills Drive, do have a statutory duty to maintain it and keep it in repair. That section provides in part: "The owner of any easement in the nature of a private right of way, or of any land to which any such easement is attached, shall maintain it in repair." It does not follow, however, that defendants' duty to maintain and keep their easements in repair and their general duty to keep the easements in a safe condition included, as Geib suggests, a duty to install and maintain street and traffic control signs and signals on that road.
In Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1243, the Court of Appeal, noting that an easement owner "has no possessory right in the land beyond the limited use of the land granted by the easement," explained that "[t]he nature of the duty owed by the owner of an interest in real property must have a relationship to the degree of control conferred by the scope of the ownership interest itself" (italics added), and "[a]n easement interest does not necessarily translate into a tort duty." In that case, a minor, his mother and sister brought a personal injury and premises liability action against landowners in a planned development subdivision who were members of the property owners association and owned nonexclusive access easements over a private road within the subdivision, alleging the defendants were negligent in failing to prevent a specific property owner from violating association rules by allowing his guard dogs to escape from his property and attack the child on the private road. (Id. at pp. 1236-1237.) Appealing judgments for the defendants, the plaintiffs claimed that "all easement holders are liable to the same extent as any landowner for anything that occurs on the easement." (Id. at p. 1241.) Rejecting that claim, the Court of Appeal affirmed the judgments, holding that "the easement owners did not have any duty of care to prevent the harm that occurred." (Id. at p. 1236.) Finding the defendant easement owners did not have a right of control over the road, the Cody F. court explained that although a duty clearly arises for one who "creates and controls" (id. at p. 1243) the potential risk of harm, the law "does not impose responsibility where there is no duty because of the absence of a right to control." (Id. at p. 1241.) The court also explained that "[t]he right of control that attends ownership of an easement has a narrower scope than the right of control that accompanies fee ownership of real property. Therefore, the corresponding duty to third parties in managing the property interest must also be narrower in scope and tied to the reason that the easement is granted." (Id. at p. 1246.)
Geib relies on Mamola v. State of California ex rel. Dept. of Transportation (1979) 94 Cal.App.3d 781 (Mamola) for the proposition that "an easement owner can owe a duty to post signs and/or barricades warning of a dangerous condition on its property." Geib's reliance on Mamola is misplaced. That case involved an action against the state under the provisions of the California Tort Claims Act (specifically, Gov. Code, § 835) for personal injuries the plaintiffs suffered while driving on Old Cajon Boulevard in San Bernardino County, a road that the state had relinquished to that county, when their automobile struck a barricade that extended part way across the width of the end of the road, and fell 40 feet into an adjacent ravine created and owned by the state. (Mamola, supra, 94 Cal.App.3d at pp. 785-786, 787.) The undisputed facts showed that at the time it relinquished the road to the county, the state retained ownership of the abutting ravine, and it also retained an easement over the road for purposes of ingress and egress. (Id. at p. 786.) The state brought a summary judgment motion on the grounds that it did not own, maintain or in any way exercise control over the road and that San Bernardino County had such ownership and control. (Ibid.) Appealing the trial court's grant of summary judgment in favor of the state, the plaintiff claimed the state's retention of an easement in the road created an ownership interest in the easement; the easement was therefore "public property" within the meaning of the California Tort Claims Act; and thus the state, as the owner of the easement, had a duty to protect against dangerous conditions on Old Cajon Boulevard. (Mamola, 94 Cal.App.3d at p. 787.) Rejecting that claim, the Court of Appeal in Mamola concluded that the state's ownership of the easement, standing alone, "create[d] no liability" (id. at p. 788), and the plaintiff failed to show the existence of a triable issue of fact "arising from the State's retention of an easement for purposes of ingress and egress." (Id. at p. 789.) The court rejected the plaintiff's premise that the state's retention of the nonexclusive access easement over Old Cajon Boulevard relieved the County of San Bernardino, as the owner of the servient tenement, "from any duty to inspect for hazards." (Id. at p. 788.)
In a ruling not pertinent here, the Mamola court also held, however, that the trial court should have denied the state's summary judgment motion because under the circumstances of that case, there was a triable issue whether the state, as the owner and creator of the adjacent ravine, breached a duty to adequately barricade the ravine or provide a warning about the existence of the ravine to users of the road. (Mamola, supra, 94 Cal.App.3d at p. 792.) The court reasoned the plaintiff had adequately demonstrated the state owned the ravine, his car plunged to the bottom of it, the state created it, it was located at the terminus of the road, no adequate barricades or warnings concerning the ravine were present, and the state before relinquishing the adjacent highway to the county notified the county that traffic control measures, signs, striping and "special warning devices as necessary" would be required. (Id. at pp. 791-792.)
Here, as already discussed, the undisputed facts show that at the time of the accident, defendants owned only nonexclusive easements over Rolling Hills Drive for the purpose of ingress and egress. Because defendants, like the defendant access easement owners in Cody F. and Mamola, had no right of control over the subject private road (here, Rolling Hills Drive), and Geib has presented no evidence to show defendants created the allegedly dangerous conditions on Rolling Hills Drive, we conclude as a matter of law that defendants did not owe Geib a duty to install and maintain street and traffic control signs and signals on that road.
b. Rowland duty factors
Because we have concluded as a matter of law (for reasons discussed, ante) that defendants did not owe Geib the duty of care alleged in this matter, we need not address his next contention that the court erred in finding under Rowland, supra, 69 Cal.2d 108, that no duty attached as a matter of law. Were it necessary to address this contention, we would conclude for the following reasons that the weighing of the Rowland duty factors supports the court's ruling.
As we stated in another case, "[t]he California Supreme Court has explained that a legal duty is an expression of the sum total of those considerations of policy that lead the law to conclude that a particular plaintiff is entitled to protection. [Citation.] The high court's landmark 1968 decision in Rowland, supra, 69 Cal.2d 108, 'has stood as the gold standard against which the imposition of common law tort liability in California is weighed by the courts in this state.' [Citation.] Since the publication of the Rowland decision, its many judicial progeny have adopted the Rowland court's policy-driven, multifactor weighing process for determining whether in a particular case a defendant owed a tort duty to a given plaintiff. [Citation.] These nonexclusive factors (the Rowland factors) generally include: (1) the foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered harm; (3) the closeness of the connection between the defendant's conduct and the injury suffered; (4) the moral blame attached to the defendant's conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant; (7) the consequences to the community of imposing a duty to exercise care with resulting potential liability for breach of that duty; and (8) the availability, cost, and prevalence of insurance for the risk involved. [Citation.]" (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1091, fn. omitted; see also Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.)
"Foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, but in a given case one or more of the other Rowland factors may be determinative of the duty analysis. [Citations.]" (Castaneda v. Olsher, supra, 41 Cal.4th at p. 1213.) Using what it describes as a "sliding-scale balancing formula," the Supreme Court has explained that when the burden of preventing future harm is great, a high degree of foreseeability may be required, but when there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. (Id. at pp. 1213-1214.)
Because the existence and scope of a duty of care is a question of law, we determine de novo the issue of whether defendants owed a duty of care to Geib in the circumstances of this case. (See Ann M., supra, 6 Cal.4th at pp. 673-674.) We now proceed to the task of applying the Rowland factors to the record below.
1. Foreseeability of harm
Regarding the first Rowland factor─the foreseeability of harm to the plaintiff─we first address Geib's contention that the court erred "[i]n purporting to resolve this fact issue on [defendants'] summary judgment motions." Relying on Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58, for the proposition that "if reasonable minds could differ as to whether, based on the evidence, the accident was foreseeable, the issue of foreseeability is one for the jury's determination," Geib contends the court "should have permitted the jury to decide whether defendants should have foreseen that the intersection was dangerous at night, given the evidence that it was surrounded by vegetation, hilly, and contained no lighting or warning signs." We reject this contention. In post-Bigbee decisions, the California Supreme Court has repeatedly held that foreseeability, when analyzed to determine the scope of a duty, is a question of law that an appellate court will determine de novo. (See Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237; Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1146; Ann M., supra, 6 Cal.4th at p. 678.) Thus, here, the court properly addressed the foreseeability of harm factor in determining whether defendants owed Geib the duty of care alleged in his complaint.
In support of their argument that they did not owe Geib a duty of care because the accident was not reasonably foreseeable, all of the defendants presented evidence showing that before Geib's accident in this matter on November 3, 2003, they were not aware of any motor vehicle accidents on Rolling Hills Drive at or near the intersection, and were not aware of any dangerous condition on Rolling Hills Drive.
On appeal, quoting Judge Prager's prior ruling denying the County's previous summary judgment motion in this matter and citing Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d 1495, 1508, for the proposition that an order made in one department of the trial court during the progress of a cause cannot be ignored or overlooked in another department, Geib contends Judge Prager's ruling that triable issues exist as to whether the County knew or should have known the intersection was dangerous was binding on Judge Orfield when he ruled on defendants' summary judgment motions, which are at issue here. This contention is unavailing. Judge Prager's ruling addressed Geib's claim against the County under the California Tort Claims Act, which was not at issue in his action against defendants, and it did not address the duty of care that defendants as holders of easements over Rolling Hills Drive allegedly owed Geib. The County's summary judgment motion involved different parties, legal issues, and evidence. We conclude Judge Prager's prior ruling on the County's summary judgment motion was not binding on the court with respect to defendants' motions.
In his tentative ruling, which he later confirmed, Judge Prager stated: "[T]riable issues exist regarding whether the County had actual or constructive notice of the alleged dangerous condition at the intersection. [Citation.] Here, [Geib] provided evidence indicating that the County's road crews drive County maintained roads every two weeks and observed or should have observed that the view of a southbound driver on Rolling Hills Drive of the T intersection would be obstructed by foliage."
Geib also contends the court abused its discretion in refusing to consider the declarations of former Rolling Hills Drive area homeowners Barbara Byers and Fred Harvey that Geib submitted in opposition to the summary judgment motions brought by the Furtados, the Taylors, and the Gilberts. Geib maintains these declarations were relevant to show defendants were on notice of what he maintains was a dangerous condition on Rolling Hills Drive such that they had a duty to install and maintain signage on that road. These contentions are unavailing.
Byers stated she lived in the Valley Center area from 1985 through approximately 1989. She also stated that she thought southbound Rolling Hills Drive just north of Old Castle Road was dangerous, and during the time she lived there she "heard from the people in the neighborhood that there had been multiple accidents" there and at the intersection. Harvey stated he lived in the Valley Center area from 1969 through 1992. He also stated that a stop sign facing southbound Rolling Hills Drive that was erected at the intersection when he lived in the neighborhood "got knocked over" a few times by cars, he "heard from various property owners in our neighborhood" that several accidents had occurred at the intersection and at the top of the hill just north of the intersection, and they "all seemed to agree" that the intersection and parts of Rolling Hills Drive "were dangerous spots, especially at night when it was dark."
The court sustained objections to the declaration testimony of Byers and Harvey regarding what it referred to as the "general consensus of the neighborhood that the intersection was dangerous" on the grounds the testimony was no more current than 1992, years before the Furtados, Taylors and Gilberts purchased their properties; it was "irrelevant to [the issue of] notice"; and it was based on hearsay.
Any error by the court in its evidentiary rulings regarding the foregoing portions of the Byers and Harvey declarations was harmless. The challenged testimony pertained to events that occurred some years before the Furtados, Taylors and Gilberts purchased their properties, the testimony about what Byers and Harvey "heard" from their neighbors when they lived in the area was of insubstantial circumstantial relevance regarding whether defendants had notice of any accidents, and the court properly found that defendants' own testimony that they did not consider the road or intersection dangerous and that they had no notice of any accidents on Rolling Hills Drive and at the intersection thus remained "undisputed."
Geib also suggests the court erred in substantially disregarding the expert opinion testimony of Crommelin, his traffic engineering expert, who opined that homeowners who had an access easement over Rolling Hills Drive had a duty to post appropriate warning signs such as "Intersection Ahead" along southbound Rolling Hills Drive and that defendants "should have called a service request for the placement of a Stop sign at the [intersection]." Relying on Crommelin's May 2007 declaration, Geib also asserts "there was evidence . . . that defendants placed signs and markings on their private road to protect themselves from northbound traffic." (Italics added.) In that declaration, Crommelin stated in part: "Approximately 450 feet north of Old Castle Road there are some traffic signs located on the east side of the roadway facing northbound traffic. There is a standard PEDESTRIAN CROSSING sign supplemented by a SLOW sign. In the same general area there are raised reflective pavement markers [that] aid in guidance for traveling on Rolland [sic] Hills Drive. I understand that the County does not maintain this road, and therefore I assumed that the residents in the neighborhood placed such signs." (Italics added.)
There is both a factual issue (that does not affect defendants' right to summary judgment) whether the County─which is a party to these consolidated actions but is not a party to the instant appeal─owns, maintains or controls any portion of Rolling Hills Drive in some manner, and a legal issue whether the County is responsible for the traffic engineering for that road. As discussed, ante, it is undisputed that defendants have no ownership interest in Rolling Hills Drive other than the easements giving them the limited right to use that road for purposes of ingress and egress. In support of their summary judgment motions, Cacatian, Glen Furtado, Lester Taylor II, and Gerald Gilbert all stated in their declarations that they had never participated in any manner in the maintenance of Rolling Hills Drive or the intersection. Robert Goralka, the County's traffic engineer, stated in his declaration that the County owns in fee simple about 50 feet of right-of-way on either side of the centerline of Old Castle Road in the segment that include the intersection of Rolling Hills Drive; and the County "does not own, maintain or control the asphalt surface which forms and shapes the privately owned and maintained roadway." (Italics added.)
The court found Crommelin's declaration was "mainly speculative," it "attempt[ed] to make legal conclusions regarding 'duty' that are the province of the court," and it was "insubstantial" to the extent it was not otherwise objectionable.
As a general rule, there are limits to the admissibility of expert opinion testimony, "not the least of which is the prohibition against admission of an expert's opinion on a question of law." (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178.) Here, the court did not err to the extent it refused to consider Crommelin's expert opinion testimony regarding defendants' duties as easement holders. As already discussed, the existence and scope of a duty of care are questions of law for the court to decide. (Alcaraz, supra, 14 Cal.4th at p. 1162, fn. 4.) The court also did not err in finding that Crommelin's stated assumption that unnamed "residents in the neighborhood" placed signs visible to northbound traffic on Rolling Hills Drive was speculative. In any event, such evidence was not relevant as Geib alleged defendants were negligent in failing to post warning signs at or near the intersection visible to southbound, not northbound, traffic.
The Rowland foreseeability of harm factor only minimally supports the imposition of a duty of care on defendants in this case. Defendants' evidence showing they were not aware of any motor vehicle accidents on Rolling Hills Drive at or near the intersection, nor of any dangerous condition on Rolling Hills Drive, is substantially undisputed.
2. Degree of certainty that Geib suffered injury
Regarding the second Rowland factor─the degree of certainty that the plaintiff suffered injury─it is undisputed that Geib suffered severe head injuries in the accident. Due to the gravity of those injuries, this factor has some tendency to support the imposition of a duty of care.
3. Closeness of connection between defendants' conduct and Geib's injury
Considering the third Rowland factor─the closeness of the connection between the defendants' conduct and the injury suffered─in light of defendants' limited right to control Rolling Hills Drive (discussed, ante), there is no substantial evidence of a connection between defendants' failure to install and maintain traffic control signs or devices and Geib's injuries.
4. Moral blame
Regarding the fourth Rowland factor─the moral blame attached to the defendant's conduct─no moral blame can be attached to defendants' conduct in light of their lack of notice of the alleged dangerous condition of Rolling Hills Drive and the intersection, and their limited right to control that road.
5. Policy of preventing future harm
Considering the fifth Rowland factor─the policy of preventing future harm─we acknowledge that the policy of preventing future harm to drivers and passengers traveling southbound on Rolling Hills Drive is unquestionably important. However, to paraphrase Cody F., supra, 92 Cal.App.4th at page 1244, that policy is not served by imposing liability on homeowners living on or near Rolling Hills Drive who have only limited rights over their ingress and egress easements where the accident occurred.
6. Burden to defendants and consequences to the community of imposing a duty
Considering the sixth Rowland factor─the extent of the burden to the defendants and consequences to the community of imposing a duty to exercise care with resulting liability for breach─we conclude that the burden to defendants and the consequences to the community as a whole strongly militate against imposition on defendants of the duty of care alleged in Geib's complaint. The duty Geib seeks to impose on defendants, as unassociated homeowners and easement owners whose only interest in Rolling Hills Drive is the limited right to use that road for purposes of ingress and egress, is not the duty to remove dead tree limbs that have fallen onto the road or to fill in potholes that might cause a vehicle to go out of control. Geib seeks to impose on them an onerous duty to "install and maintain street and traffic control signs and signals" on Rolling Hills Drive near its intersection with Old Castle Road, a public highway. Judicial recognition of such a duty would obligate defendants and other landowners who hold access easements over nearby private roads to act as road safety engineers charged with the responsibility of using due care to assess whether those roads are safe under the applicable traffic engineering standard of care and code requirements and to use due care to repair any deficiencies. Unlike a local governmental agency that is dedicated to planning roadways and has the authority, expertise and resources to install traffic safety signs and devices that their trained professionals deem to be necessary, unassociated private landowners typically have no such attributes. As probable consequences to the community of the imposition of such a duty on owners of access easements, real properties located on or near private roads burdened with access easements would become less desirable, the fair market value of such properties would decline due to market forces as a result of potential buyers avoiding properties that are accessible only through the use of easements, and the cost of homeowner insurance for such properties would increase due to the cost of defending lawsuits seeking to hold easement-owning landowners civilly liable for allegedly negligent breach of that duty.
7. Availability, cost, and prevalence of insurance
Finally, the last Rowland factor─the availability, cost, and prevalence of insurance for the risk involved─does not support imposition of the alleged duty of care on defendants. Geib has presented evidence that some of the defendants may have insurance providing coverage for his claims against them. However, there is nothing in the record regarding the cost and prevalence of such insurance.
Upon weighing all of the Rowland factors, we are persuaded as a matter of law that defendants did not owe a duty of care to Geib to install and maintain street and traffic control signs and other devices on southbound Rolling Hills Drive.
In support of their argument that they and the other easement-holding defendants did not owe the duty of care that Geib claims they owed, Posladek and the Taylors cite the recent decision in Garcia v. paramount Citrus Ass'n, Inc. (2008) 164 Cal.App.4th 1448. Garcia, however, is inapposite because it did not involve the question presented here of whether homeowners who own real property abutting or located near a private road and hold easements for the use of such a road for ingress and egress owe a duty of care to install and maintain street and traffic control signs or devices near that road's intersection with a public road. A petition for review was filed in Garcia on August 27, 2008.
c. Vehicle Code section 21465
In light of our conclusion that defendants did not owe the alleged duty of care to Geib as a matter of law, we need not and do not address Geib's contention that defendants' argument they were legally prohibited under Vehicle Code section 21465 from posting a warning or stop sign at the intersection is "a classic straw man argument."
Vehicle Code section 21465 provides: "No person shall place, maintain, or display upon, or in view of, any highway any unofficial sign, signal, device, or marking, or any sign, signal, device, or marking which purports to be or is an imitation of, or resembles, an official traffic control device or which attempts to direct the movement of traffic or which hides from view any official traffic control device." (Italics added.)
DISPOSITION
The judgments in favor of defendants are affirmed. Defendants shall recover their costs on appeal.
WE CONCUR: McCONNELL, P. J. McDONALD, J.
However, Cacatian, Furtado, and Taylor stated in their declarations that after November 3, 2003, the date of the accident in this matter, the County installed a stop sign on southbound Rolling Hills Drive about 35 feet north of the intersection. Furtado and Taylor stated that the back of that sign says it is the property of the County. In addition, Cacatian and Furtado stated that county personnel painted the word "stop" and a limit line on Rolling Hills Drive.