Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 140898
HOCH, J.After a night of celebratory drinking in downtown Chico, plaintiffs hired a pedicab to take them home rather than endanger the public by driving while intoxicated. Unfortunately, a drunk driver rear-ended the pedicab, ejecting plaintiffs and the operator from the conveyance.
Plaintiffs suffered serious injuries in the accident and sued the City of Chico (the City), alleging: (1) the condition of the street and bike lane where the accident occurred constituted a “dangerous condition” of public property for purposes of Government Code sections 830 and 835; and (2) the City failed to “utilize all minimum safety design criteria and uniform specifications and symbols for signs, markers, and traffic control devices” in developing and operating its bikeways and roadways where bike travel is permitted as required by Streets and Highways Code section 891. The City moved for summary judgment, which the trial court granted.
Undesignated section references are to the Streets and Highways Code.
On appeal, plaintiffs assert that they “raised numerous triable issues of material fact” with respect to each cause of action. We affirm the judgment entered in favor of the City. As we explain, the trial court correctly concluded that the City’s lack of control over the highway on which the accident occurred is fatal to each of plaintiffs’ causes of action.
BACKGROUND
Route 32 is a state highway extending from Interstate 5 near Orland to Route 36 near Lake Almanor. (§ 332.) The highway cuts through the center of Chico, and from west 1st Street to west East Avenue it is commonly known as Nord Avenue. This portion of Route 32 crosses the Big Chico Creek roughly one-10th of a mile north of west 1st Street. As the highway approaches the Big Chico Creek bridge from the south, the roadway elevates and then declines after passing over the bridge.
The Accident
Shortly after midnight on the night of the accident, plaintiffs flagged down a pedicab about a block from Madison Bear Garden in downtown Chico. Less than sober, they decided it would be safer to take a pedicab than to drive. The pedicab carried its passengers through downtown Chico along city streets, made a right turn onto Route 32 from west 1st Street, and continued across the Big Chico Creek bridge.
As the pedicab reached the end of the bridge, a black BMW convertible hit the back of the pedicab, causing plaintiffs and the operator to be ejected from the conveyance. Plaintiffs suffered serious injuries in the accident. Police determined that the driver of the BMW was intoxicated at the time of the collision.
The Complaint
Plaintiffs sued the City, alleging in their first cause of action that the City failed to discharge the mandatory duty found in section 891, providing that “[a]ll city, county, regional, and other local agencies responsible for the development or operation of bikeways or roadways where bicycle travel is permitted shall utilize all minimum safety design criteria and uniform specifications and symbols for signs, markers, and traffic control devices established [by the Department of Transportation (Caltrans)].” Specifically, plaintiffs alleged that, “[a]mong other failings, the bikeway where the accident occurred does not meet the minimum width requirements and sign/marking requirements” for bike lanes. Plaintiffs’ second cause of action alleged that “the too-narrow bike lane, sharp decline leaving the bridge and lack of warning of the decreased visibility of bicycle riders” amounted to a “dangerous condition” of public property for purposes of Government Code sections 830 and 835.
The Summary Judgment Motion
The City moved for summary judgment asserting that plaintiffs would not be able to establish an essential element of each cause of action, i.e., that the City owned or controlled the portion of Route 32 where the accident occurred.
In support of the motion, the City proffered a separate statement containing five undisputed facts. First, the accident occurred when the pedicab in which plaintiffs were riding northbound on Route 32 was struck from behind by a northbound motor vehicle just after the pedicab crossed the Big Chico Creek bridge. Second, the City has never possessed any ownership interest in the portion of Route 32 on which the accident occurred. Third, the City did not participate in the design, construction, configuration, striping, surfacing or signing of the accident site. Fourth, the City has a contract with the state allowing the City to perform street sweeping along Route 32, including the accident site; however, the City’s activities are confined to sweeping and do not physically change or modify the configuration or placement of the roadway, surface, striping or signing in any way. And finally, the City has never requested access to perform work at the accident site; in order to do so, it would first have to obtain an encroachment permit from the state. From these undisputed facts, the City concluded that it neither owned nor controlled the accident site.
Plaintiffs acknowledged that the foregoing facts were undisputed, but challenged the City’s conclusion that it lacked the ability to control the accident site. In an attempt to raise a triable issue of fact, plaintiffs put forward their own separate statement of disputed and undisputed facts. The City then disputed several of plaintiffs’ purportedly undisputed facts.
The following facts are genuinely undisputed. The pedicab began its journey with plaintiffs on city bike paths. The pedicab then turned onto what the operator believed to be a bike lane on Route 32. The accident occurred within city limits. California State University, Chico, is located in the general area surrounding the accident site, and the general land usage is predominantly medium to high density apartments. Most of the traffic on the Nord Avenue portion of Route 32 is local in nature. As a result, Nord Avenue functions more as a city street than an interregional highway.
The City promotes itself as a “bicycle friendly city” and has a Bicycle Advisory Committee that advises the Chico City Council (City Council) on matters pertaining to bicycles. The City has also developed the Chico Bicycle Plan (Bicycle Plan), which is utilized as a “planning level document” and incorporated into projects as they are completed within the City. The Bicycle Plan includes a map that shows a bike lane on Route 32 crossing the Big Chico Creek bridge; however, the precise limits of the bike lane are described in the text of the document and indicate that the lane begins north of the accident site.
Local projects along state highways are generally funded by local agencies, including improvements for bike lanes within city limits. The City has a variety of funding sources that can be used for bike lane improvements. The City can request that bike lanes be placed on state highways within city limits, such requests are typically granted, and Caltrans generally locates the bike lanes in accordance with the requesting city’s bike plan. Although, as the City pointed out, it is also undisputed that Caltrans did not consult with the City concerning the bike lanes that were placed on the Nord Avenue portion of Route 32.
As specific instances of the City’s exercise of control over Route 32, plaintiffs offered the following. In 1999, the City asked for and received permission to install a traffic signal at the intersection of El Monte Avenue and Route 32, over three miles from the accident site. In 2003, the City allocated $10,000 to participate in a grant application to address the land use and circulation needs for Route 32 from the Big Chico Creek bridge to East Avenue.
In 2004, the City Council considered a report that identified the Nord Avenue portion of Route 32 as one of several “roadways at risk, ” meaning that the roadway was “over or near capacity.” The same year, the City’s director of public works recommended that the City Council approve certain changes to a “Nexus Study” required by the California Environmental Quality Act, including $13 million for improvements to Route 32, although the location of the proposed improvements is not specified. In 2005, the City Council approved a Street Facility Improvement Fee Assumption of $10 million for improvements to a portion of Route 32 over two miles from the accident site. In 2006, the City collaborated with Butte County in creating a study called the Nord Avenue (SR 32) Corridor Plan, which analyzed Route 32 for possible improvements in safety and congestion and recommended bike lane improvements. The same year, the City approved a Route 32 widening project located over two miles from the accident site.
The Trial Court’s Ruling
Granting the motion for summary judgment, the trial court explained: “The City did not have ownership [of] or responsibility for the road in question, even if it had the option of suggesting or recommending changes to the roadway.” This was fatal to plaintiffs’ first cause of action because the trial court interpreted the phrase “local agencies responsible for the development or operation of bikeways or roadways where bicycle travel is permitted” (§ 891), to mean the local entity “with the responsibility and authority to create bike lanes on the particular roadway in question.” Nor could the City be held liable under plaintiffs’ second cause of action because the allegedly dangerous condition existed on a state highway over which the City had no ownership or control. Judgment was entered in the City’s favor. This appeal followed.
DISCUSSION
I
We begin by summarizing several principles that govern the grant and review of summary judgment motions under section 437c of the Code of Civil Procedure.
“A defendant’s motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. [Citation.] The burden of persuasion remains with the party moving for summary judgment. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 (Kahn); Code Civ. Proc., § 437c, subd. (c).) Thus, 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. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc., § 437c, subd. (o)(2).) Such a defendant also “bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to [plaintiff] to demonstrate the existence of a triable issue of material fact.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1250 (Laabs), citing Aguilar, supra, 25 Cal.4th at pp. 850-851.) However, “[t]he pleadings delimit the issues to be considered on a motion for summary judgment” (Turner v. State of California (1991) 232 Cal.App.3d 883, 891), and “the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.” (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.)
On appeal from the entry of summary judgment, “[w]e review the record and the determination of the trial court de novo.” (Kahn, supra, 31 Cal.4th at p. 1003.) And in determining whether there exist any triable issues of material fact, we strictly construe the moving party’s evidence and liberally construe the opposing party’s evidence. (Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1543.)
II
Plaintiffs contend the City’s summary judgment motion should have been denied because a triable issue of material fact exists as to whether the City possessed the ability to control the bike lanes along the Nord Avenue portion of Route 32. We disagree.
A public entity is liable for injuries “caused by a dangerous condition of its property.” (Gov. Code, § 835.) “‘Property of a public entity’ and ‘public property’ mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.” (Gov. Code, § 830, subd. (c).)
Government Code section 835 provides in full: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either:
Plaintiffs concede that the City does not own Route 32. Instead, they argue that a genuine issue of material fact exists as to whether the City possessed the ability to control the bike lanes on the portion of Route 32 passing through the city limits. The City counters by arguing that the following undisputed facts negate the element of control as a matter of law: (1) the state designed, constructed, and placed the signage and striping on Route 32, without the City’s participation; and (2) if the City wanted to place signs or striping on Route 32, it would have been required to obtain the state’s permission. We agree with the City.
“[A] city cannot be liable for a dangerous or defective condition of a public street or highway unless it has authority to remedy the condition.” (Gillespie v. City of Los Angeles (1950) 36 Cal.2d 553, 556 (Gillespie).) However, the Legislature has determined that Caltrans “shall have full possession and control of all state highways and all property and rights in property acquired for state highway purposes.” (§ 90, italics added.)
Vehicle Code section 21350 expressly designates Caltrans as the entity responsible for the placement and maintenance of traffic signs, signals and other traffic control devices “with respect to highways under its jurisdiction.” And while local authorities are authorized by Vehicle Code section 21351 to place and maintain traffic signs, signals and other traffic control devices upon streets and highways “in their respective jurisdictions, ” state highways are not within the jurisdiction of a local entity. (Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1538; Gillespie, supra, 36 Cal.2d at pp. 558-559; Veh. Code, §§ 21350 & 21351.) Accordingly, the City was not responsible for the placement or maintenance of the bike lanes on Route 32.
Vehicle Code section 21350 provides: “[Caltrans] shall place and maintain, or cause to be placed and maintained, with respect to highways under its jurisdiction, appropriate signs, signals, and other traffic control devices as required hereunder, and may place and maintain, or cause to be placed and maintained, such appropriate signs, signals, or other traffic control devices as may be authorized hereunder, or as may be necessary properly to indicate and to carry out the provisions of this code, or to warn or guide traffic upon the highways. The Department of Transportation may, with the consent of the local authorities, also place and maintain, or cause to be placed and maintained, in or along city streets and county roads, appropriate signs, signals, and other traffic control devices, or may perform, or cause to be performed, such other work on city streets and county roads, as may be necessary or desirable to control, or direct traffic, or to facilitate traffic flow, to or from or on state highways.”
Nevertheless, plaintiffs argue that a factual dispute exists as to the City’s ability to control the bike lanes on Route 32 because (1) the City has the ability to request that a bike lane be marked by Caltrans on a state route within city limits, (2) such requests are typically granted, (3) Caltrans generally places requested bike lanes in accordance with a city’s bike plan, (4) the City has a variety of funding sources for bike lane improvements, and (5) the City’s Bicycle Plan includes a map showing a bike lane along Route 32 where the accident occurred.
At most, this evidence establishes that the City could have requested permission to place a bike lane complying with the City’s Bicycle Plan on Route 32, that Caltrans probably would have granted such a request, and that the City would have been able to fund the project. This evidence does not establish that the City actually requested such permission. Nor does it create a triable issue of fact as to whether the City possessed the authority to remedy the alleged deficiency in the bike lane, or any other dangerous condition, on Route 32. The foregoing statutes confirm that the state owned and controlled Route 32, including the accident site. And plaintiffs offered no evidence that the City requested permission to place, maintain, or otherwise exercise control over the bike lanes on Route 32. Accordingly, the trial court was entitled to rule as a matter of law that the City did not have control over the accident site. (See Ramsey, supra, 220 Cal.App.3d at pp. 1539-1540.)
Plaintiffs also contend that a triable factual issue exists because the City asked for and received the state’s permission to make other improvements to Route 32. These facts do not demonstrate the City’s control over the accident site. The fact that the City was granted permission to install a traffic signal on Route 32 over three miles from the accident site does not establish that the City possessed the authority to remedy the allegedly deficient bike lane at the accident site. Nor does the fact that the City collaborated with Butte County in creating the Nord Avenue Corridor Plan, approved a Route 32 widening project located over two miles from the accident site, considered a report that identified Route 32 as operating “over or near capacity, ” or allocated various funds for improvements to other portions of Route 32.
Again, at most, this evidence establishes that the City could have requested the state’s consent to remedy the bike lane on Route 32 at the accident site. However, because the City was under no duty to correct the condition of the bike lanes on Route 32, the “failure to ask for such consent was no breach of any duty to exercise ordinary care to maintain its [property] in a reasonably safe condition.” (Avey v. County of Santa Clara (1968) 257 Cal.App.2d 708, 714; Gillespie, supra, 36 Cal.2d at p. 556.)
III
Plaintiffs attempt to create liability based on the theory that a public entity’s property may be considered dangerous if a condition on adjacent property exposes those using or attempting to use the public property to a substantial risk of injury. (Laabs, supra, 163 Cal.App.4th at p. 1260; Bassett v. Lakeside Inn, Inc. (2006) 140 Cal.App.4th 863, 868-869 (Bassett).) Plaintiffs’ reliance on Laabs, supra, 163 Cal.App.4th 1242 and Bassett, supra, 140 Cal.App.4th 863 is misplaced.
Here, plaintiffs’ complaint does not allege that the condition of the state highway exposed those using or attempting to use adjacent city streets to a dangerous condition. Instead, plaintiffs raised this theory for the first time in their opposition to the City’s summary judgment motion. However, “the pleadings set the boundaries of the issues to be resolved at summary judgment. [Citations.] A ‘plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.]’... Thus, a plaintiff wishing to ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing. [Citations.]” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648; see also Lackner v. North (2006) 135 Cal.App.4th 1188, 1201-1202, fn. 5.) As plaintiffs did not amend their complaint to allege an adjacent property theory, this theory cannot serve as a basis to reverse the trial court’s grant of summary judgment.
In any event, the theory fails as a matter of law. In Laabs, supra, 163 Cal.App.4th 1242, plaintiff was injured in a collision on the northbound lanes of a four-lane roadway as another vehicle attempted to make a left turn across the northbound lanes in order to access the southbound lanes. The county owned and controlled the northbound lanes; the city owned and controlled the southbound lanes. (Id. at pp. 1247-1249.) The Court of Appeal held that “liability may be imposed on the City for an allegedly dangerous intersection even though the initial impact occurred on County property and the obstructions to visibility existed on the County side of [the roadway].” (Id. at p. 1262.) In these circumstances, the city’s property could be considered dangerous because the risk to plaintiff arose as a result of the other driver’s attempt to use and access the city’s southbound lanes. (Id. at p. 1261; see also Bassett, supra, 140 Cal.App.4th 863, 866, 869-870 [young girl killed by drunk driver on her way to school as she crossed intersection adjacent to a school bus stop; location of bus stop could be a dangerous condition of public property because the girl was exposed to risk of injury while using the property, i.e., crossing the street to reach the bus stop].)
In contrast, here, neither plaintiffs nor the driver of the BMW were using or attempting to use the City’s property when the accident occurred. Indeed, the accident occurred roughly one-10th of a mile from the city street the pedicab operator used to access the state highway. Thus, the danger to plaintiffs arose by reason of a condition on state property, while plaintiffs and the driver of the BMW were using state property. And the location of the accident was not so closely located to the City’s property as to give rise to a danger to persons using the City’s property. Therefore, as a matter of law, plaintiffs’ injuries cannot be said to have been caused by a dangerous condition of City property. “A contrary conclusion would expose public entities to lawsuits and possible liability for multifarious defects and conditions existing substantial distances off entity property, which conditions they have no authority to correct or guard against.” (Goss v. State of California (1978) 82 Cal.App.3d 426, 431.)
IV
We also disagree with plaintiffs’ assertion that triable issues of material fact exist as to whether the City failed to discharge its mandatory duties under the Bicycle Transportation Act.
Section 891 provides that “[a]ll city, county, regional, and other local agencies responsible for the development or operation of bikeways or roadways where bicycle travel is permitted shall utilize all minimum safety design criteria and uniform specifications and symbols for signs, markers, and traffic control devices established pursuant to Sections 890.6 and 890.8.” (Italics added.) These minimum safety design criteria and uniform specifications and symbols are established by Caltrans (§§ 890.6, 890.8), and can be found in the California Manual on Uniform Traffic Control Devices (MUTCD). (http://www.dot.ca.gov/hq/traffops/signtech/mutcdsupp/pdf/camutcd2010/Part1.pdf [as of Mar. 17, 2011].)
The MUTCD itself makes clear that the entity “responsible for” the development or operation of bikeways or roadways where bicycle travel is permitted is the entity with jurisdiction over the particular bikeway or roadway. Section 1A.07 of the MUTCD provides that “[t]he responsibility for the design, placement, operation, maintenance, and uniformity of traffic control devices shall rest with the public agency or the official having jurisdiction.” Section 1A.08 of the MUTCD provides that “[t]raffic control devices, advertisements, announcements, and other signs or messages within the highway right-of-way shall be placed only as authorized by a public authority or the official having jurisdiction, for the purpose of regulating, warning, or guiding traffic.”
As we have already explained, state highways are not within the jurisdiction of a local entity. (Ramsey, supra, 220 Cal.App.3d at p. 1538; Gillespie, supra, 36 Cal.2d at p. 558; Veh. Code, §§ 21350 & 21351.) Consequently, the City was not “responsible for” the bike lane on Route 32 where the accident occurred within the meaning of section 891.
Nevertheless, plaintiffs contend that the City obligated itself to comply with MUTCD safety requirements with respect to the bike lane at the accident site because it provides for bicycle transportation within the city limits, “promotes itself as a ‘bicycle-friendly city, ’” and created a bicycle plan which, according to plaintiffs, “provides for bike lanes throughout the city, including that portion along Nord Avenue at Big Chico Creek where the accident occurred.” We are not persuaded.
First, we have already determined that the City has no authority to remedy the bike lanes on Route 32 without the state’s permission, and has no duty to request such permission. (See Goss v. State, supra, 82 Cal.App.3d at p. 431.) And the fact that a map in the City’s Bicycle Plan identifies existing bike lanes in the Chico area does not create such authority or duty.
Second, the fact that the City has declared itself to be “bicycle friendly, ” and generally provides for bicycle transportation within the city limits, does not establish that the City has undertaken to control the bike lanes on Route 32. While there is ample evidence that the City has jurisdiction over a multitude of bike lanes within the city limits, there is no evidence that the City has jurisdiction over the bike lanes on Route 32.
Plaintiffs also rely on section 891.8, which provides: “The governing body of a city, county, or local agency may do all of the following: [¶] (a) Establish bikeways. [¶] (b) Acquire, by gift, purchase, or condemnation, land, real property, easements, or rights-of-way to establish bikeways. [¶] (c) Establish bikeways pursuant to Section 21207 of the Vehicle Code.” Vehicle Code section 21207 provides that local authorities may establish, “by ordinance or resolution, ” bike lanes on highways, “other than state highways... and county highways, ” and that such bike lanes “shall be constructed in compliance with Section 891 of the Streets and Highways Code.”
According to plaintiffs, subdivision (a) of section 891.8 “would be rendered meaningless” if “only the state can establish bikeways along a state highway.” However, plaintiffs’ view fails to take into consideration section 887.6, which provides that, upon the request of a public agency, including a city, Caltrans “may enter into an agreement with the agency for the construction and maintenance of nonmotorized transportation facilities which generally follow a state highway right-of-way where [Caltrans] has determined that the facility will improve safety and convenience for bicyclists.” This provision also provides that such an agreement “may provide for the handling and accounting of funds, the acquisition or conveyance of right-of-way, maintenance, and any other phase of the project.” (§ 887.6; see also § 887 [“‘[N]onmotorized transportation facility’ means a facility designed primarily for the use of pedestrians, bicyclists, or equestrians. It may be designed primarily for one or more of those uses”].)
When the foregoing provisions are read together, it becomes apparent that a city can establish a bikeway along a state highway if it first obtains the state’s permission. Only then would it be “responsible for” the bikeway, and consequently, required to “utilize all minimum safety design criteria and uniform specifications and symbols for signs, markers, and traffic control devices established pursuant to Sections 890.6 and 890.8.” (§ 891.) However, plaintiffs offered no evidence that the City asked for or received permission to place or maintain the bike lanes on Route 32. Here, undisputed evidence exists that the bike lanes were placed on Route 32 without any participation on the part of the City.
Simply put, plaintiffs offered no evidence that the City was “responsible for” the bike lanes on Route 32 within the meaning of section 891.
DISPOSITION
The judgment is affirmed. Plaintiffs shall reimburse the City of Chico for its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: BLEASE, Acting P. J., HULL, J.
“(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
“(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”
Vehicle Code section 21351 provides: “Local authorities in their respective jurisdictions shall place and maintain or cause to be placed and maintained such traffic signs, signals and other traffic control devices upon streets and highways as required hereunder, and may place and maintain or cause to be placed and maintained, such appropriate signs, signals or other traffic control devices as may be authorized hereunder or as may be necessary properly to indicate and to carry out the provisions of this code or local traffic ordinances or to warn or guide traffic.”