CORDOVA v. CITY OF LOS ANGELESAppellants’ Petition for ReviewCal.January 23, 2013 supreme Court No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ANTONIO and JANIS CORDOVA, SUPREME COURT Pie Plaintiffs and Appellants, vs. JAN 23 2013 CITY OF LOS ANGELES, Frank A. McGuire Clerk Defendant and Respondent. Deputy After a Published Decision by the Court of Appeal, Second Appellate District, Division One Court of Appeal No. B236195 Los Angeles Superior Court Nos. BC442048, BC444004, BC443948 Hon. William F. Fahey PETITION FOR REVIEW Martin N. Buchanan (SBN 124193) John A. Girardi (SBN 54917) Law Offices of Martin N. Buchanan Girardi | Keese 600 B Street, Suite 1900 1126 Wilshire Boulevard San Diego, CA 92101 Los Angeles, CA 90017 Telephone: (619) 238-2426 Telephone: (213) 977-0211 Facsimile: (619) 525-3991 Facsimile: (213) 481-1554 Attorneys for Petitioners Antonio and Janis Cordova CS TABLE OF CONTENTS ISSUES PRESENTED... 00...ees 1 WHY REVIEW SHOULD BE GRANTED...............2...00205. j STATEMENTOF FACTS.......... 0.000. c ccc eee cc cece eee ee 5 LEGAL DISCUSSION... 2.0.0...eee cc eect eee een 11 I. REVIEW SHOULD BE GRANTED TO SECURE UNIFORMITY OF DECISION ON AN IMPORTANT ISSUE OF LAW. ...... 2.0ccceee il A. The Court of Appeal’s Published Opinion Conflicts With Ducey and Lane................. 11 B. The Court of Appeal’s Interpretation of Zelig Conflicts With Cole. ..... 0... 0.eee 16 C. Alternatively, Review Should be Granted and the Case Transferred Back to the Court of Appealfor Reconsideration in Light ofDucey, Lane, and Cole. 0...ccc cece ee eee 19 II. REVIEW SHOULD BE GRANTED TO DECIDE WHAT STANDARD OF REVIEW APPLIES TO A TRIAL COURT’S EVIDENTIARY RULINGS ON SUMMARY JUDGMENT...................000000. 20 CERTIFICATE OF COMPLIANCE... 2.0... 00.0.0 c ccc eens 25 CERTIFICATE OF SERVICE. ........... 0.0 cc cece cece cence 26 TABLE OF AUTHORITIES CASES Bonannovy. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139. 0.0.eeeneeas 14 Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764. 00...ceee n eee nes 4 Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1...cccete e eens 23 City ofSan Diego v. Superior Court (2006) 137 Cal.App.4th 21. 0...ccccece cece eens 3 Cole v. Town ofLos Gatos (2012) 205 Cal.App.4th 749. 2.0.0.0... 0... cee eee 3, 5, 16, 18, 19, 20, 24 Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707......... 0.0.0 ce eee 2, 4,5, 11, 12, 13, 14, 16, 20, 24 Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102. 2...ccccee eee 22 Hurley v. County ofSonoma(1984) 158 Cal.App.3d 281.0... 0.0...cnet eee neces 4 Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706... 0...eeeee eee teen ete eens 20 Laab v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260. 2.2...ccccece eens 4 Lanev. City ofSacramento (2010) 183 Cal.App.4th 1337. ............... 2,5, 11, 12, 14, 15, 16, 20, 24 Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243. 2.00.eeens 21 Neal v. Farmers Insurance Exchange (1978) 21 Cal.3d 910... 0...ceee tee eens 20 il Reid v. Google, Inc. (2010) 50 Cal.4th 512...ccceens 5, 10, 11, 21 Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142... 0.00.0.cceee eens 22 Zelig v. County ofLos Angeles (2002) 27 Cal.4th 1112. ........ 0.0... 0.0 eee eee 2, 3, 12, 16, 17, 18, 19 STATUTES Gov. Code, § 835.0... 0... ccc cece e ences 1, 12, 14, 15, 17 OTHER AUTHORITIES Cardozo, The Nature of the Judicial Process (1921)... .............000. 5 NCHRP Report 612, Safe and Aesthetic Design of Urban Roadside Treatments (2008)... 0.0...cccnee 10 Turner & Mansfield, Urban Trees and Roadside Safety, 116 J. Transportation Engineering (1990)..................00. 11 ill Petitioners Antonio and Janis Cordova hereby request that this Court grant review of the December 20, 2012 published decision of the Court of Appeal, Second Appellate District, Division One. A copy of the Court of Appeal’s published opinionis attached to this petition as Exhibit 1. ISSUES PRESENTED 1. A vehicle is forced off a city road by a criminally negligent driver and crashesinto a large tree planted dangerously close to the roadway in the center median. The collision with the tree kills or seriously injures the vehicle’s occupants. Can the City escapeliability for the dangerous roadside condition merely becausethetree itself did not cause the vehicle to veer off the roadway? 2. On summary judgment, a trial court excludesthe plaintiffs’ expert testimony and supporting evidence on the existence of a dangerous condition under Government Code section 835. What is the standard of review for evidentiary rulings on summary judgment, and did the trial court err by excluding plaintiffs’ evidence and granting summary judgment? WHY REVIEW SHOULD BE GRANTED Review should be granted to secure uniformity of decision on an important issue of law arising under Government Code section 835. Ina published opinion, the Court of Appeal ruled that the City of Los Angeles could not be held liable for a hazardous roadside condition because the roadside object—a large magnoliatree planted in a center median—did not itself cause the vehicle to veer off the roadway. Thisruling is directly contrary to the holdings ofDucey v. Argo Sales Co. (1979) 25 Cal.3d 707 and Lane v. City ofSacramento (2010) 183 Cal.App.4th 1337. Ducey and Lane definitively establish that a public entity may be liable for a hazardousroadside condition that increases the risk of injury from an out-of-control vehicle—evenif the hazardous condition itself did not contribute to the vehicle leaving the roadway. (Ducey, supra, 25 Cal.3d at pp. 715-721 [state liable for absence of median barrier that would have prevented out-of-control vehicle from crashing into oncomingtraffic]; Lane, supra, 183 Cal.App.4th at p. 1348 [city not entitled to summary judgment on causation even though allegedly dangerous concrete lane divider did not cause plaintiffs to swerve into divider].) The Court of Appeal’s published decision inexplicably muddles a previously settled area of law without discussing or distinguishing Ducey and Lane. The Court of Appeal instead relied on a 2002 opinionofthis Court involving a courthouse shooting, and it quoted a sentence of the opinion stating that the alleged “defect in the physical condition of the property must have some causal relationship to the third party conductthat actually injures the plaintiff.” (Zelig v. County ofLos Angeles (2002) 27 Cal.4th 1112, 1136.) But Zelig itself explained that the causal relationship must be “between the defect and the injury”(id. at p. 1135), and that this causalrelationship is established when “therisk of injury from third parties”is “increasedor intensified by any condition of the public property.” (/d. at p. 1137.) Here, the risk of injury was increased by the presence of a hazardousfixed object placed too close to the roadway. The Court of Appeal’s contrary interpretation of Zelig conflicts with the holding of Cole v. Town ofLos Gatos (2012) 205 Cal.App.4th 749. In Cole, the Court of Appeal rejected the town’s claim that an allegedly dangerous condition of public property must somehow have contributed to the third-party conduct of a drunk driver wholeft the road andhit the plaintiff. (Ud. at pp. 769-774.) The court found that Zelig did not establish “a rule requiring a direct causal link between a dangerous condition and the conductofthe third party, as distinctfrom the harm to the plaintiff.” (Id. at p. 771, emphasis added.) In reachingthisresult, the Cole court “decline[d] to follow”the holding of City ofSan Diego v. Superior Court (2006) 137 Cal.App.4th 21 “insofar as it adopts a new and extremelyrestrictive rule for determining when the conductof a third party will operate as a superseding cause excusing a public entity from liability for a dangerous condition ofits property.” (Cole, supra, 205 Cal.App.4th at p. 774.) Notably, the Court of Appeal belowrelied on City ofSan Diego but did not cite or mention Cole. (Ex. A, p. 14.) Review should be granted to resolve these blatant conflicts between published decisions. Clarity and consistencyare particularly importantin this area becauseit is a recurring issue. California courts have repeatedly recognized that it is common and foreseeable for drivers to lose control of their vehicles and leave the roadwayfor reasons having nothing to do with lack of due care. (See, e.g., Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 775 [“Drivers are supposedto control their vehicles and keep them onthe traveled roadway, but common experience showsthey do not always do so”]; Ducey, supra, 25 Cal.3d at p. 720 [“manytraffic accidents, including cross-medianaccidents, occur without the negligence of any party”]; Laab v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1273 [cars stray off the road “in a numberofways:a fronttire blowout could cause a driver to lose control of his car; a driver could take evasive action to avoid a hazard and lose control of his car; a car could careen out of control following a collision with another vehicle”]; Hurley v. County ofSonoma (1984) 158 Cal.App.3d 281, 286-287 [triable issue of fact whether bridge abutment seven feet from highway constituted “a dangerous condition, given the foreseeability of vehicles, for a variety of reasons, straying off the road”’].) Alternatively, review should be granted andthe case transferred back to the Court of Appeal with directions to reconsiderits decision in light of Ducey, Lane, and Cole. Our system depends on faithful adherenceto judicial precedents. The Court of Appeal’s published decision should not be allowed to stand withoutat least some explanation for its departure from these controlling precedents. “Adherence to precedent must... be the rule rather than the exception if litigants are to have faith in the even-handed administration ofjustice in the courts.” (Cardozo, The Nature ofthe Judicial Process (1921) p. 34.) Finally, this case also presents an opportunity for this Court to decide whatstandard of review appliesto a trial court’s evidentiary rulings on summary judgment. In Reid v. Google, Inc. (2010) 50 Cal.4th 512, this Court held that de novo review is appropriate whenthe trial court fails to rule on evidentiary objections. But the Court stated: “[W]e need not decide generally whethera trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo.” (/d. at p. 535.) Review should be granted to resolve the issue left undecided in Reid. STATEMENT OF FACTS The Court of Appeal’s opinion accurately summarizes the factual and proceduralhistory of the case. (Ex. A, pp. 2-8.) But the opinion does not fully discuss the “clear zone” concept of roadside safety set forth in relevant publications of the American Association of State Highway and Transportation Officials(AASHTO).' Beginning in the 1960’s, AASHTO began developingthe “clear zone”or “clear roadside” concept to prevent vehicles from colliding with fixed obstacles along the side of the road whendrivers lose control and leave the roadway. AASHTOfirst published this concept in a 1967 report entitled Highway Design and Operational Practices Related to Highway Safety, which recommendedcreating a “clear recovery area” free of hazardous fixed objects along the side of the road. (2 AA 389-390.) In 1977, AASHTO “modified the earlier clear zone concept by introducing variable clear zone distances based ontraffic volumes and speeds, and on roadside geometry.” (2 AA 447.) And in 1996, AASHTOdiscussed the “clear zone” concept in a comprehensive Roadside Design Guide intended as “a synthesis of current information and operating practices related to roadside safety ....” (2 AA 433.) As explained in these AASHTOpublications: “Even the most superficial study oftraffic accident experience showsthat a substantial number of vehicles leave the traveled way, inadvertently or otherwise. Becausethisis true, every reasonable effort should be madeto design the ‘Although thetrial court excluded the AASHTOpublications as well as plaintiffs’ expert testimony based on the “clear roadside” concept, petitioners challenged these evidentiary rulings on appeal. (AOB 17-27.) The Court of Appeal decided the appeal on the assumptionthat “plaintiffs’ evidence was wrongly excluded....” (Ex. A, p. 10.) Accordingly,plaintiffs will discuss the content of the AASHTOpublicationsin this petition. 6 roadsidesfor this eventuality. The motorist must be given as safe a roadside situation asit is practicable to provide.” (2 AA 398.) “The elimination of [roadside] obstructions from existing streets and highways and their exclusion from subsequent design plans can and must be expedited by deliberately engineering the roadsidefor safety.” (2 AA 398.) “The forgiving roadside concept allowsfor errant vehicles leaving the roadwayand supports a roadside design where the serious consequences of such an incident are reduced.” (2 AA 440.) Large trees are one of the roadside hazardssingled out in these publications. As AASHTOexplained: “Treesofultimately large trunk size plantedtoo close to the traveled wayare potential hazards.” (2 AA 399.) “Single vehicle collisions with trees account for nearly 25 percentofall fixed-object fatal accidents annually and result in the deaths of approximately 3000 persons each year.” (2 AA 480.) “The removal of individual trees should be considered whenthosetrees are determined both to be obstructions andto bein a location wherethey arelikely to be hit.” (2 AA 480.) If they cannot be removed,“a properly designed andinstalled traffic barrier can be used to shield them.” (2 AA 481.) Although the “clear zone” concept was developed primarily for high- speed rural highways,it applies to urban roads andstreets to the extent feasible under the circumstances. AASHTO’soriginal report of 1967 included a separate section entitled “Roadside Hazards on Conventional Roadsand Streets.” (2 AA 409-410.) This section stated: “Recognizing the narrow right-of-way and existence of manyutility poles, trees, and walls on both public and private property, it may well be that roadside obstructions on these roadsconstitute a problem altogetherdifferent from that of higher type roads. On the other hand,it is obvious that many roadside hazards do appearin the accident experience and can be removed,or motorists protected from them,or the roadway redesigned. Active programsto this end should be an integral and importantpart ofthe overall highway program in each State.” (2 AA 409.) AASHTO’s Roadside Design Guide of 1996 is more explicit about applying the “clear zone” concept to urban settings. Chapter 10 of the Roadside Design Guideis entitled “Roadside Safety in Urban and/or Restricted Environments.” (2 AA 524.) This chapter covers “urban”or “urban-like”“highways or streets where the following type conditions may be found: lower speeds; dense abutting development; limited right-of-way; closely spaced intersections and accessto properties; high traffic volumes; and the presence of special users including mass-transit vehicles, delivery trucks, bicycles, and pedestrians.” (2 AA 524.) Chapter 10 emphasizes: “The clear roadside conceptisstill the goal of the designer; however,this is often not attainable and compromises may be necessary.” (2 AA 525, emphasis added.) Within the “constraints of the urban roadside,” AASHTO recommendedthat the following “design options for treatmentof fixed objects should be considered in each case”: * Removethe obstacle or redesign it so it can be safety traversed. * Relocate the obstacle to a point whereit is less likely to be struck. * Reduce impactseverity by using an appropriate break-away device. * Redirect a vehicle by shielding the obstacle with a longitudinaltraffic barrier and/or impact attenuator. ¢ Delineate the obstacle if the above alternatives are not appropriate. (2 AA 525.) AASHTOdevoted another section of this same chapter to urban landscaping. This section provides further support for applying the “clear zone” conceptto large roadside trees in urban environments. Specifically,it stated: “In general, in urban areas with lowertravel speeds, large trees should be kept at least 2 to 3 meters from the edge of the traveled way, certainly outside ofthe clear zone.” (2 AA 530, emphasis added.) The Roadside Design Guideis intended “a resource document from which individual highway agencies can develop standards andpolicies.” (2 AA 433.) “While muchof the material in the guide can be considered universalin its application, there are several recommendationsthat are subjective in nature and may need modification tofit local conditions.” (2 AA 433.) Thisis particularly true for urban environments: “To a greater extent than when designing for roadside safety for high-speed rural highways, eachsite in a restricted road environment shouldbeindividually studied.” (2 AA 525.) In 2008, the Transportation Research Board of the National Academies (TRB) published an exhaustive report on urban roadside safety that was sponsored by AASHTOin cooperation with the Federal Highway Administration. (NCHRP Report 612, Safe and Aesthetic Design of Urban Roadside Treatments (2008), available online at www.trb.org.)’ The report stated that a clear zone should be created in urban areas wherefeasible,or if not feasible, measures should be taken to minimizethe severity of potential impacts with fixed roadside objects, such as by shielding or cushioning them. (/d. at pp. 5-6, 12-13.) The TRB report included an extensive discussion on “lateral offset placementof trees and landscaping”in urbanareas, as well as an analysis of existing safety research on roadside trees. (/d. at pp. 20-24.) Twostudies discussedin the report are particularly relevant here. First, a 1990 study of *The TRB report wasnotcited in thetrial court. Petitioners cite it here to demonstrate that trees planted too close to the roadwaypresent a genuine safety concern even in urban areas, andit is a recurring danger significant enough to warrant this Court’s attention. (See also Aragon v. City ofNewport Beach (Oct. 24, 2001) 2001 WL 1297494 [unpublished opinion in case alleging that tree in median ofNewport Beach road was a dangerouscondition of property].) 10 “urban tree safety” in Huntsville, Alabama “concluded that mature trees with diameters larger than 10 cm (4in.) should not be permitted within a roadside clear zone region.” (Id. at p. 23.) Second, researchersat California Polytechnic State University completed a three-phase study in 2004 “in which they evaluated the street tree application specifically for the urban median condition.” (Jd. at p. 24.) “The researchers concludedthat large trees located in mediansare associated with moretotal crashes as well as morefatal and injury crashes.” (Ibid.) LEGAL DISCUSSION I. REVIEW SHOULD BE GRANTED TO SECURE UNIFORMITY OF DECISION ON AN IMPORTANT ISSUE OF LAW A. The Court of Appeal’s Published Opinion Conflicts With Ducey and Lane The Court of Appeal ruled that “even assumingplaintiffs’ evidence was wrongly excluded, they cannot show that the magnolia tree contributed to Shnayder’s criminally negligent driving....” (Ex. A, p. 10.) The Court of Appealfurther explained: Even considering plaintiff's excluded evidence, we conclude *Turner & Mansfield, Urban Trees and Roadside Safety, 116 J. Transportation Engineering (1990) pp. 90-104. “Reports on all three phases of the Cal Poly study are available online at http://ceenve3.civeng.calpoly.edu/sullivan/Trees. 11 as a matter of law the magnoliatree in the median strip does not constitute a dangerous condition. There is nothing about Colorado Boulevard that would cause a person driving at or near the speed limit to suddenly veer into the magnoliatrees. Plaintiffs do not contend the view of the median wasin any way obscured such that the tree was a surprise obstacle in the roadway,or that the median and trees causedcarsto travel at unsafe speed (including the freeway speedsthe plaintiffs’ decedents were driving here) such that persons using the roadway with due care would be hit by such vehicles. (Ex. A, p. 14, citing Zelig, supra, 27 Cal.4th at p. 1136.) This causation ruling conflicts directly with the holdings of Ducey and Lane. Under Ducey and Lane, a roadside condition that increasesthe risk of injury from an out-of-control vehicle can constitute a dangerous condition of property—evenif it doesnot play a role in causing the vehicle to leave the roadway. In Ducey,the plaintiffs were seriously injured when a car driving in the opposite direction on a state freeway crossed the median andcollided head-on with their vehicle. (Ducey, supra, 25 Cal.3d at pp. 711-712.) The plaintiffs sued the state for failure to install a median barrier. Thestate argued that it could not be held liable under Government Codesection 835 for failing “to protect plaintiffs from dangers that allegedly were not of the state’s own making.” (/d. at p. 715.) “Because in the instant case the conductof the [other] vehicle, rather than any defect in the roadway, was, in the state’s view, the precipitating cause of the accident, the state maintains that the trial court should have directed a verdictin its favor.” ([bid.) 12 In an opinion authored by Justice Tobriner, the Court rejected the state’s causation argument. The Court held that a public entity’s liability “maybe predicated onits failure to take protective measures to safeguard the public from dangers that may not necessarily be of the entity’s own creation.” (Ducey, supra, 25 Cal.3d at p. 716.) The court ruled that “if the condition of [the] property creates a substantial risk of injury even when the property is used with duecare, the state gains no immunity from liability simply because,in a particular case, the dangerous conditionofits property combineswith a third party’s negligent conduct to inflict injury.” (Jd. at p. 719.) The Court also rejected the state’s claim that because cross-median accidents are usually caused by negligence, the absence of a median barrier did not create a substantial risk of injury when the freeway was used with due care. (Ducey, supra, 25 Cal.3d at p. 719.) The Court noted that “numerous expert witnesses identified various situations in which cross- median accidents might occur in the absence of negligence, as when accidents result, for example, from mechanical failure, suddenillness, or animals in the road.” (/bid.) “Moreover,... the jurors were free to draw upon their own common driving experiences which might well have suggested to them that manytraffic accidents, including cross-median accidents, occur without the negligence of any party.” (/d. at p. 720.) Thus, 13 the Court affirmed a judgment againstthe state. (/d. at p. 721.) Duceyis directly on point. If the Court ofAppeal’s decision below werecorrect, the state could not possibly have been liable in Ducey. The absence of a median barrier in Ducey obviously did not cause the other vehicle to lose control and leave the freeway. Rather, it merely increased the risk of injury from an out-of-control vehicle. Under the holding of Ducey, “a physical condition of the public property that increasesthe risk of injury from thirdparty conduct may be a ‘dangerous condition’ underthe statutes.” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 153-154.) In other words, the condition of the public property need notincreasethe likelihood ofthe third party conduct—it need only increase the “risk of injury” from the third party conduct. (Jbid.) Laneis also directly on point. In Lane, a motorist driving on a city street swerved to the left when the vehicle immediately to his right appeared to be too close. His vehicle struck a concrete center divider that separated the westbound and eastbound lanes. The motorist and his passenger sued the City of Sacramento, asserting that the center divider was a dangerous condition of public property under Government Codesection 835. (Lane, supra, 183 Cal.App.4th at pp. 1339-1340.) The city argued that “it was not liable because the center divider was not the proximate cause ofplaintiffs’ injuries in that the divider did not 14 cause Montgomery to movehiscarto the left.” (Lane, supra, 183 Cal.App.4th at p. 1341.) Reversing a summary judgmentruling in favor of the city, the Court of Appeal concludedthat this argument “misapprehends the nature of the required causal connection.” (/d. at p. 1348) “Under the governingstatute, the pertinent question is not whether the divider caused Montgomery to swerve or moveto theleft; rather, the pertinent questionis whetherplaintiffs’ ‘injury was proximately caused by the dangerous 399 condition.’” (/bid., quoting Gov. Code, § 835.) Because there was “no dispute... that both plaintiffs suffered injuries as a result of Montgomery’s car striking the concrete divider,” the court ruled that “the city failed to show thatthe plaintiffs could not establish a proximate causal connection between the divider andtheir injuriesfrom thecollision with the divider.” (Ibid., emphasis added.) The Court of Appeal’s reasoning below cannotbe reconciled with Lane. To paraphrase Lane, “the pertinent question is not whether the [tree] caused [the vehicle] to swerve or moveto the left; rather, the pertinent question is whetherplaintiffs’ ‘injury was proximately caused by the 399 dangerouscondition.” (Lane, supra, 183 Cal.App.4th at p. 1348, quoting Gov. Code, § 835.) The Court of Appeal’s focus on whether the magnolia tree itself played a role in causing the vehicle to leave the roadway “misapprehendsthe nature of the required causal connection.” (/bid.) 15 Plaintiffs cited Lane in their opening brief and devoted a whole section oftheir reply brief to Zane’s holding on dangerous condition and causation. (AOB 21; ARB 4-10.) But the Court of Appeal cited Lane only in passing for the unremarkable proposition that absence of a dangerous condition may be decided as a matter of law if no reasonable person could find a dangerous condition to exist. (Ex. A, p. 12.) The Court of Appeal did not discuss the actual holding ofLane on the causation issue, nor did it explain howits conclusion could be reconciled with Lane. Plaintiffs also cited and discussed Duceyin their briefing of the causation issue (AOB 32- 33), but the Court of Appeal did not mention Ducey anywhereinits opinion. Review should be grantedto resolve this conflict. B. The Court of Appeal’s Interpretation of Zelig Conflicts With Cole Emphasizingthat the plaintiffs’ vehicle was forced off the road by a third party’s “criminally negligent driving” (Ex. A, p. 10,) the Court of Appealheld that “the alleged ‘defect in the physical condition of the property must have some causalrelationship to the third party conduct that actually injures the plaintiff.’” (Ex. A, p. 13, quoting Zelig, supra, 27 Cal.4th at p. 1136.) The Court of Appeal cited this same page of Zelig again in ruling that there was nothing about the magnolia trees that caused the plaintiffs’ vehicle to veer off the roadway. (Ex. A, p. 14.) This interpretation of Zelig conflicts with the holding of Cole, supra, 205 16 Cal.App.4th at pp. 771-774. In Zelig, the children of a woman whowasfatally shot by her ex- husbandin a courthouse sued the county. This Court held that the county could not be held liable under Government Codesection 835 because the injury wasnot caused by any dangerous condition of the property. (Zelig, supra, 27 Cal.4th at p. 1137.) The Court acknowledgedthat a public entity may in some circumstancesbeliable for a dangerous condition of property even though “theinjury to the plaintiff was caused bythe criminal activity of third persons.” (Jd. at p. 1135.) But it emphasized “thatliability is imposed only whenthere is some defect in the property itself and a causal connection is established between the defect and the injury.” (Jbid.) After a lengthy discussion of the relevant authorities on injuries caused by a combination of property defects andacts ofthird parties, the Court in Zelig concluded: To summarize: “If the risk of injury from third parties is in no wayincreasedor intensified by any condition of the public property ... courts ordinarily decline to ascribe the resulting injury to a dangerous condition of the property. In other words,there is no liability for injuries caused solely by acts of third parties. [Citations.] Such liability can arise only when third party conduct is coupled with a defective condition of property.” (Zelig, supra, 27 Cal.4th at p. 1137, citation omitted.) Zelig is perfectly consistent with plaintiffs’ theory ofliability. It explicitly held that the required “‘causal connection” must be “between the 17 defect and the injury.” (Zelig, supra, 27 Cal.4th at p. 1135.) Here, the alleged defect is the presence of the magnoliatree too close to the roadway, and the collision with the magnolia tree is what caused the deaths and injuries. Zelig also recognized that a public entity maybeliableif the risk of injury from third partiesis “increased or intensified” by a condition of the property. (/d. at p. 1137.) Here, the risk of injury from being run off the road by another driver was “increased or intensified” by the presence of the large magnolia trees too close to the roadway. The Court of Appeal’s contrary interpretation of Zelig conflicts with Cole, supra, 205 Cal.App.4th at pp. 771-774. In Cole,the plaintiff was standing by her vehicle along a gravel strip between a park and a road when a drunk driver named Rodriguez left the road and hit her. The gravelstrip, park, and roadall belonged to the Town of Los Gatos. Theplaintiff sued the town for a dangerous condition of property. (/d. at p. 754.) After the trial court granted summary judgment, the Court of Appeal reversed. (Jd.at p. 781.) Oncausation, the Court of Appeal specifically rejected thetrial court’s ruling that “Town cannotbe liable for a dangerous condition ofits property unless that condition caused Rodriguez's conduct.” (Cole, supra, 205 Cal.App.4th at pp. 769-770.) After an extensive discussion of Zelig, the Court of Appeal concluded: “We donot believe the Supreme Court had 18 any intention of adopting such rule in Zelig, with the possible exception of situations where the plaintiff's injuries could not have occurred but for an intervening act of deliberate violence.” (/d. at p. 774.) Contrary to Cole, the Court of Appeal below construed Zelig to require a causalrelationship between the dangerous condition of property (the tree) and Shnayder’s criminally negligent driving. (Ex. A, pp. 10, 13, 14.) But the Court of Appeal did not cite or discuss Cole in reaching its decision. The Court of Appeal’s contrary interpretation of Zelig would also lead to absurd and anomalousresults. If plaintiffs had lost control of their vehicle and crashedinto the tree for reasons other than the negligence of a third party, Zelig would not apply andthe city could be heldliable forthe dangerous condition. But because they lost control oftheir vehicle due to another driver’s negligence, the Court of Appeal hasinterpreted Zelig to require a causal connection between the tree andthe third party’s negligence. This makes no sense. Plaintiffs should not have less protection merely because they were forced off the road by another driver’s negligence—as opposed to a mechanicalfailure,a tire blowout, a medical emergency, an animalin the road, or any other cause not involving third party negligence. Review should be granted to correct this anomalous interpretation of Zelig. 19 OF Alternatively, Review Should be Granted and the Case Transferred Back to the Court of Appeal for Reconsideration in Light of Ducey, Lane, and Cole There is another procedural mechanism available to ensure that the Court of Appealat least addresses the holdings ofDucey, Lane, and Cole. Although grant-and-transfer orders are most common following the Court of Appeal’s summary denial of a writ petition, this Court has also made use of them when the Court of Appeal appears to have overlooked controlling law on appeal. (See, e.g., People v. Chacon, No. 8112675 (Feb. 11, 2003 docketentry: “The matter is transferred to the Court of Appeal, Fifth Appellate District, with directions to vacate its decision, filed November26, 2002, and to reconsider the matter in light of Welfare and Institutions Code section 1732.6, subdivision (b)”); Lane v. Hughes Aircraft, No. S059064 (March 19, 1997 docket entry: “Petition for review granted; transferred to CA 2/7 w/directions to vacate its decision & reconsider in light of Nealv. Farmers Insurance Exchange (1978) 21 Cal.3d 910, 932-933 and Jonesv. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706, 710-711).) Because the Court of Appeal’s published opinion failed to address conflicting precedents, a grant-and-transfer order would be appropriate even if this Court decides not to resolve the conflictitself. 20 I. REVIEW SHOULD BE GRANTED TO DECIDE WHAT STANDARD OF REVIEW APPLIES TO A TRIAL COURT’S EVIDENTIARY RULINGS ON SUMMARY JUDGMENT Thetrial court excluded muchofplaintiffs’ expert testimony and supporting evidence on the existence of a dangerous condition. (3 AA 626- 638.) Plaintiffs challenged these evidentiary rulings in a separate 10-page section of their opening brief on appeal. (AOB 17-27.) But the Court of Appeal assumedthat plaintiffs’ evidence was wrongly excluded and resolved the appeal on the causation issue. (Ex. A, pp. 10, 14.) Thus, the Court of Appeal did not have to decide what standard of review applies to evidentiary rulings on summary judgment. In Reid v. Google, supra, 50 Cal.4th 512, this Court held that de novo review is appropriate whenthetrial court fails to rule on the evidentiary objections. But the Court stated: “[W]e need not decide generally whethera trial court's rulings on evidentiary objections based on papers alone in summaryjudgment proceedings are reviewed for abuse of discretion or reviewed de novo.” (dd. at p. 535.) Review should be granted to resolve the issue left undecided in Reid. “Whether abuse ofdiscretion is the proper standard of review when rulings on evidentiary objections are based on papers alone presents an interesting question, one that is by no meanssettled.” (Nazir v. United Airlines, Inc. 21 (2009) 178 Cal.App.4th 243, 255, fn. 4.) As one court has recently noted (with one Justice disagreeing on the issue), “it may be arguable that evidentiary rulings at a summaryjudgment proceeding, such as lack of foundation, should be reviewed de novo....” (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1114; see also id. at pp. 1122- 1124 (conc. opn. of Turner, P.J.) [disagreeing with majority and arguing that abuse of discretionis proper standard of review]; Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142, 149 fn. 2 [“The record does not reflect whetherthe trial court ruled on the objections. However, that is of no consequence; we must determinethe validity of those objections ourselves since our standard of review is a de novo examination of the order which granted the motion for summary judgment.”].) Although petitioners did not argue for de novo review ofthe evidentiary rulings in the Court of Appeal, they did challengethetrial court’s evidentiary rulings in a discrete section of their openingbrief. (AOB 17-27.) Because the Court of Appeal found it unnecessary to decide the evidentiary issues, it has not been deprived of an opportunity to rule on the matter. Further, this Court has authority to consider issues not raised in the lower courts, and it has done so in the past whenthe casepresents “‘an issue of law that does not turn on the facts of [the] case,it is a significant issue of widespread importance,andit is in the public interest to decide the 22 issue at this time.” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 6.) This is such an issue. Summary judgment motionsare litigated and decided on daily basis in our legal system. Evidentiary rulings on summary judgment are commonplace. And not only do summary judgment appeals frequently turn on the lower court’s evidentiary rulings, but the applicable standard of review is often outcome-determinative. Further, the standard of review is a pure issue of law that does not depend on the particular facts of the case. Becausethis is a purely legal issue of widespread importancethat effectively controls the results of many different typesof civil appeals, there should not be any lingering uncertainty on the issue. Review should be granted to decide once andforall what standard of review applies to evidentiary rulings on summaryjudgment. 23 CONCLUSION Review should be granted for two reasons: (1) to resolve the conflicts between the Court of Appeal’s published decision and the decisions in Ducey, Lane, and Cole, and (2) to decide what standard of review applies to evidentiary rulings on summaryjudgment. Alternatively, review should be granted and the matter transferred back to the Second Appellate District, Division One, with directions to vacate its decision of December20, 2012 and reconsider the matterin light ofDucey, supra, 25 Cal.3d at pp. 715-721; Lane, supra, 183 Cal.App.4th at p. 1348; and Cole, supra, 205 Cal.App.4th at pp. 769-774. Dated:J;an.[, 2013 LAW OFFICES OF MARTIN N. BUCHANAN By: ly InTr Martin N. Buchanan (Attorney for Petitioners Antonio and Janis Cordova) 24 CERTIFICATE OF COMPLIANCE Pursuantto rule 8.504(d) of the California Rules of Court,I certify that the foregoing Petition for Review was produced on a computerin 13- point type. The word count, including footnotes, as calculated by the word processing program used to generate the brief is 5,490 words. Dated: Jan.|, 2013 LAW OFFICES OF MARTIN N. BUCHANAN By: Nt Ah ‘ fr Martin N. Buchanan (Attorney for Petitioners Antonio and Janis Cordova) 25 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATEOF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE ANTONIO CORDOVAetal., | B236195 Plaintiffs and Appellants, (Los Angeles County Super. Ct. Nos. BC442048, v. BC444004, BC443948) CITY OF LOS ANGELES, COURT OF APPEAL - SECOND DIST. | Defendantand Respondent. I IL, Is . DEC 202012 JOSEPH A. LANE Clerk Deputy Clerk APPEAL from ajudgmentofthe Superior Court ofLos Angeles County, William F. Fahey, Judge. Affirmed. Law Offices of Martin N. Buchanan, Martin N. Buchanan; Girardi/Keese and John A. Girardi for Plaintiffs and Appellants. Carmen A. Trutanich, City Attorney, Amy Jo Field, Supervising City Attorney, and Sara Ugaz, Deputy City Attorney for Defendant and Respondent. Plaintiffs Antonio Cordova and Janis Cordova appeal judgmentin their wrongful death action against the City of Los Angeles (City) based on the dangerous condition of the roadway. The Cordova’s children Cristyn, Toni, and Andrew Cordova werekilled in an automobile accident on Colorado Boulevard in Eagle Rock, and claim that the City’s design of the roadway, with trees in a center median, wasin violation of principles of roadway design and maintenance whichcall for a clear zone. Weaffirm. FACTUAL BACKGROUND AND PROCEDURALHISTORY Colorado Boulevard in Eagle Rockis three lanes wide in either direction, and has grassy center medians planted with magnoliatrees in the stretch immediately east of Eagle Rock Boulevard. Someofthe medianshaveleft-turn pockets, and are generally 15.5 feet wide. The posted speed limit is 35 miles per hour. On August 27, 2008, at approximately 10:30 p.m., Cristyn Cordova wasdriving westbound on Colorado Boulevard in Eagle Rockin the inside lane in her 2006 Nissan Maxima. Cristyn had four passengers—hersister Toni, her brother Andrew, her boyfriend Carlos Campos, and herfriend Jason Gomez.! Everyone in the car was wearing their seatbelts. Driving next to Cristyn in another vehicle was Rostislav Shnayder. As Cristyn approached Hermosa Avenue, Shnayder’s car veered into Cristyn’s car, pushing her into the grassy median where her car hit a magnolia tree and crumpled. Cristyn and her unborn baby, Toni, Andrew, and Gomez were killed by the collision; Camposwasseriously injured. Shnayder wasarrested at the scene and later convicted of vehicular manslaughter. (Pen. Code, § 192, subd. (c)(2).) On July 22, 2010, the Cordovas commencedthis action for wrongful death against the City based on a dangerous condition of public property. The Cordovasasserted that 1 To avoid confusion, werefer to the Cordovasby their first names. 2 The complaint also named as defendants Shnayderand Irina Krichenko, and asserted claims against them based on negligence. They are not parties to this appeal. The parents of Jason Gomez and Carlos Campos commenced separate actions against the City and Shnayder and Krichenkothat weresettled. 2 Colorado Boulevard wasin a dangerous condition because, amongother things, it did not have “clear zones”—that area of the roadwaythat must be left unobstructed and allow drivers to remain on the roadway. They alleged the magnolia tree on the median, the height of the curb, and other design features of Colorado Boulevard were in contravention of sound safety and engineering principles. They asserted that “the roadway had a 7-foot recovery zone which was inadequate” and “a large tree was . . . maintained with the minimum clear zone width, thereby presenting a non-crashworthy severe hazard to encroaching vehicles.” 1. The City’s Motionfor Summary Judgment On June 3, 2011, the City filed a motion for summary judgmentbased onits assertion that the subject center median of Colorado Boulevard was safe when usedin a reasonably foreseeable manner; the median was not damaged, deteriorated, defective or latently hazardous in any fashion; and the accident that killed the Cordovas’ children and Gomez and injured Camposwasthe result of third-party criminal conduct. The City’s evidence in support of its motion asserted that the speed limit on Colorado Boulevard is 35 miles per hour. At the time of the collision, Cristyn’s car was travelling 68 miles per hour and Shnayder wastraveling 66 miles per hour. The City’s expert calculated this speed using accident reconstruction techniques, tire marks, and vehicle geometry. After Cristyn’s car was sideswiped by Shnayder, she missedthefirst tree on the median and then beganto rotate counter-clockwise and collided with the magnolia tree on the west end of the median. The magnolia tree had a 17-inch diameter. Cristyn did not have a valid driver’s license, nor had she ever had one. The segment of Colorado Boulevard between Hermosa Avenue and Highland View avenue wherethe accident occurred runs east/west, and Hermosa Avenue and Highland View Avenue run north/south. The speed limit was calculated by a speed study that determined 85 percent of vehicles traversing the area go between 35 and 40 miles per hour. The City’s Department of Transportation (LADOT) designated Colorado Boulevard as a major scenic highway, but the designation did not determine the speed limit. The design of the relevant stretch of Colorado Boulevard from Townsend Avenue to Eagle Rock Boulevard was approvedin July 1948. According to the City’s Bureau of Engineering (BOE) Street Design Manual, medians“serve as buffers between opposingtraffic, provide refuge for pedestrians, and are strategic locations for traffic signs, traffic, signals, and landscaping.” The inner two westboundlanes and inner three eastbound lanes of Colorado Boulevardare ten feet wide, and the left turn pocket is ten feet wide. The third lane is 19 feet wide to allow for parking. The center median between Hermosa Avenueand Highland View Avenueis 270 feet long and 15.5 feet wide before the left turn pocket begins. Whentheleft turn pocket begins, the width of the median gradually decreases to about 5.5 feet. The City’s expert found the construction of the median complied with the BOE’s plans. A minimum width of 14 feet is required where piers or abutments are located on medians. Under the Street Design Manual, center mediansare suitable for fixed, immovable objects as long as there is five feet of clearance from the face of the structure to the inner edge ofthe painted traffic lane. The center median has a standard six-inch curb face, and there is seven feet of clearance from the magnoliatree to the inner edge of the painted traffic lane. Thus, the center median island and the positioning of the magnolia tree complied with the BOE’s Street Design Manual. Landscaping elements were not included in BOE and LADOTplans because those matters are under the authority of other departments, such as the Bureau of Street Services or the Department of Recreation and Parks. Nonetheless, the median island and the magnolia trees are easily visible and readily apparent to motorists exercising due care and paying attention to their surroundings. The City’s expert was aware of “[n]o widely accepted design guideline which is applicable to low-speed roadways”that indicates “‘it is inappropriate to position fixed, immovable objects adjacent to the roadway.” On the contrary, “it would be impractical, if not impossible to apply such a rule regarding clear zones in urban settings. To provide such a ‘clear zone,’ items such as parkedcars,utility poles, bridge columns, buildings, public transit structures, bus benches, and signs would have to be eliminated from center medians and sidewalkareas.” The City contended under the American Association of State Highway and Transportation Officials (AASHTO)? “guidelines for the provision of a clear zone [did] not apply [because those] guidelines were developed to apply to state highways and to high-speed generally rural roadways with limited access.” The relevant segment of Colorado Boulevard waslow speed and high access with local streets regularly intersecting it. According to AASHTO,immovable objects may be positioned in low speed roadwaysas long as they are at least 18 inches from the face of the curb. The City’s expert did not believe the magnolia tree was hazardousto driverstraveling at or near the speed limit; further, the magnolia tree wasat least seven feet from the face of the curb for westboundtraffic. Onthe other hand,trees provide shade, pollution reduction and speed reduction because drivers drive more slowly undera tree; thus, they are removed only when a specific safety hazard has been identified. The LADOT’scollision history report indicated that none of the accidents involved the median trees; thus, nothing in the accident record would provide notice to the City of anything dangerousorlatently hazardous about the median. Thetraffic volume on the relevant segment of Colorado Boulevard was 32,500 vehicles per day, meaning that as of June 2011, since the date of the accident, more than 26 million vehicle trips had been safely made through the intersection. The LADOT?straffic collision history for the intersection of Colorado Boulevard and Highland View Avenue disclosed 12 accidents for the period August 27, 2003 to 3 “AASHTOis an organization ofstate and federal transportationofficials, established in 1914, to foster the developmentof a nationwide integrated transportation system. [Its] active membership consists of the heads of the various state departments of transportation.” The organization is funded by annual dues payments ofits members. (Centerfor Auto Safety v. Cox (D.C. Cir. 1978) 580 F.2d 689, 690.) August 27, 2008, excluding the Cordova accident. Noneofthe accidents involved a fatality. 2. Plaintiffs’ Opposition to Summary Judgment Plaintiffs asserted that triable issues of fact existed whether the location, size and condition of the magnolia tree constituted a dangerous condition within the meaning of Government Code sections 830 and 835, whetherthe tree created a reasonably foreseeable risk of injury to the public, whether the City had notice of the dangerous condition, and whetherthe location and size of the tree exposed motorists to increased risk of danger from third party negligence or criminality. Plaintiffs evidence in support established that of the magnolia trees on Colorado Boulevard, there were eight “scars” indicating impacts with cars, and two tree stumps had scars indicating impact. Plaintiffs asserted the magnolia tree Cristyn hit had a trunk diameter exceeding 24 inches and there wasnobarrier protection around the tree. Even if a car wastraveling at a speed of 35 miles per hour, the six-inch curbs would notredirect an out-of-control vehicle to preventit from striking the magnoliatrees. Thetree at the accident site was over 50 years old; the City had no records indicating whether anyone whowasalive at the time the tree was planted or the landscaping was put in would have knowledge of any assessmentofthe safety concerns regarding the tree’s locationto thetraffic. Trees are the second most commonlyhit fixed objects on roadways according to the U.S. Department of Transportation’s study (“Conventional Road Safety, Phase 1”) published in August 1979. Accordingto plaintiffs, the California Highway Patrol reported that there had been 142 accidents between Casper Avenue and Townsend Avenue on Colorado Boulevard (where the median is located) from January 1998 through April 2009; of these, 32 were sideswipe collisions, and 139 persons were either injured or killed.4 4 Plaintiffs’ data actually indicates that aside from the accidentat issue, with four fatalities, there was only oneother fatality, on August 27, 2006, when a pedestrian washit near Maywood Avenue. In 1967, an earlier organization, American Association of State Highway Officials (AASHO)developed the concept of recovery areas and clear zones, and determined such zones were necessary where potential impact with trees or poles existed. AASHTO’s 1996 “Roadside Design Guide,” provided guidelines for the placement of guardrails and fixed objects within close proximity to travel lanes of a roadway. Objects which have a diameter of even four to six inches havethe ability to penetrate a vehicle and cause injuries and death. Asa result, plaintiffs contend the danger ofa largetree at the accident site was foreseeable to the City, and the City should either have removedthetree or provided protection in the form ofa barrier. In constructing a median, City arborists and landscapers give considerationto visibility so that traffic control devices, such as signals, can be seen. Before planting trees, the City does site inspection, considers whattypeoftree is suitable for the location given thevisibility issues and the size of the parkway. However, the City does not considerthe effect of a car hitting a tree in determining whetherthetree is appropriate for a median; trees are generally planted in the middle of the median. The City does not consider the amountoftraffic on the roadway, nor doesit considerthe speedoftraffic on the street or the distance ofthe tree from the roadway. Trees are removedifthey are dead,orif the tree is in conflict with existing infrastructureor for street widening. According to plaintiffs, the City was awareofthe presenceofthe largetree in the area, as well as the large numberof sideswipe accidentsin the area, presented the hazard of injury andfatalities from sideswipe accidents hitting the trees. The numerous “out-of- control” accidents on the roadway madeit foreseeable a catastrophic collision would occur if appropriate safety measures werenot taken. If the tree had notbeen there,it is likely the Nissan would havestruck the median, slowedto a stop over a longer distance, and there would not have been seriousorfatal injury. 3. The City’s Reply In reply, the City asserted that the accident was caused solely by Shnayder’s criminal negligence and plaintiffs had not raiseda triable issue offact that the alleged defect, the magnolia tree, was a concurrent causeofthe accident, or thatit facilitated or encouraged Shnayder’s negligent driving. 4. Trial Court’s Evidentiary Rulings Thetrial court sustained evidentiary objections to much ofplaintiffs’ evidence, including the Highway Patrol Summary of accidents between 1998 and 2009; AASHO’s 1967 developmentof “clear zones;” a U.S. Department of Transportation studyentitled “Conventional RoadSafety, Phase 1” published in August 1979; and AASHO’sFebruary 1967 report of its Traffic Safety Committee; as well as the conclusions ofplaintiffs’ experts that the City was on notice of the dangersof large trees placed on medians, that such a tree constituted a dangerous condition of public property, and the curbs were insufficient to stop a vehicle from traveling into the median. Thetrial court also sustained evidentiary objectionsto the City’s evidence, including its evidence that Cristyn did not have valid driver’s license; evidence based on the City’s studies concerning the 35 miles per hour speedlimit, the LADOTtraffic collision reports; and the City’s experts’ conclusions that the median’s design was suitable fortrees. 5. Hearing on Motion; Trial Court Ruling The trial court announcedits tentative ruling was to grant the motion because the tree did not constitute a dangerous condition, and there was a lack of causation because of Shnayder’s conduct. Plaintiffs argued that even at 35 miles per hour, the tree posed a danger without a guardrail in the case of a sideswipe accident. The court notedthat boulders, mailboxes, and other items by the side of the road wouldall have to be removed underplaintiffs’ theory. The court did notfind it good policy to extendliability to all fixed objects that happened to cause injury; further, it did not find any causal connection betweenthe tree and the accident, and denied the motion. The court entered judgmentin the City’s favor. DISCUSSION 1. Standard of Review “{T]he party moving for summary judgmentbears the burden of persuasion that there is notriable issue of material fact and that heis entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1); Aguilar, at p. 850.) A triable issue of material fact exists where “the evidence would allow a reasonabletrier of fact to find the underlying fact in favor ofthe party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, at p. 850.) Where summary judgmenthas been granted, “[w]e review thetrial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) “A different analysis is required for our reviewofthetrial court’s . . . rulings on evidentiary objections. Althoughit is often said that an appellate court reviews a summary judgment motion “de novo,” the weight of authority holds that an appellate court reviews a court’s final rulings on evidentiary objections by applying an abuse of discretion standard. [Citations.]’ [Citation.]” (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335.) I. The Magnolia Tree in the Center Median Did Not Constitute a Dangerous Condition of Public Property as a Matter of Law Plaintiffs contend that it was foreseeable a sideswiped vehicle would be forced off the roadway andcollide with one of the magnolia trees planted near the curb, causing serious injury or death: Their experts established that serious or fatal injuries would occur even if a motorist were traveling at the posted speed limit of 35 miles per hour; an appropriate barrier on the median would have prevented the fatalities and injuries here; and the other magnolia trees on the median supported the conclusion that drivers were leaving the road andhitting the trees; further, plaintiffs contendthe trial court erred in sustaining the City’s evidentiary objections to their evidence. The City contends that there is no evidence the magnolia tree caused Shnayderto drive in a criminally negligent fashion andsideswipe theplaintiffs’ decedents’ vehicle. We conclude that even assuming plaintiffs’ evidence was wrongly excluded, they cannot show that the magnoliatree contributed to Shnayder’s criminally negligent driving, and affirm the trial court. A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute. (Gov. Code, § 815.) Section 835 is the sole statutory basis for a claim imposingliability on a public entity based on the condition of public property. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) Undersection 835, a public entity maybeliableif it creates an injury-producing dangerous condition onits property orifit fails to remedy a dangerous condition despite having notice and sufficient time to protect againstit. (Grenier v. City ofIrwindale (1997) 57 Cal.App.4th 931, 939.) To recoverin an action against a public entity under section 835,a plaintiff must plead and prove: “(1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeablerisk of the kind ofinjury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measuresto protect againstit.” (Brenner v. City ofEl Cajon (2003) 113 Cal.App.4th 434, 439; § 835.) Section 830 defines a “‘[d]angerous condition’”as “a condition of property that creates a substantial(as distinguished from a minor,trivial or insignificant) risk of injury when such property is used with due care in a manner in whichit is reasonably foreseeable that it will be used.” Section 830.2 explains further that “[a] condition is not 5 All statutory references herein are to the Government Codeunless otherwise noted. 10 a dangerous condition within the meaningofthis chapterif the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor,trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would concludethat the condition created a substantial risk of injury when suchproperty or adjacent property was used with due care in a mannerin which it was reasonably foreseeable that it would be used.” Property is not “dangerous” within the meaning ofthe statutory schemeif the property is safe when used with due care and the risk ofharm is created only when foreseeable users fail to exercise due care. (Chowdhury v. City ofLos Angeles (1995) 38 Cal.App.4th 1187, 1196 (Chowdhury).) As Chowdhury explained, “any property can be dangerousif used in a sufficiently improper manner. For this reason, a public entity is only required to provide roads that are safe for reasonably foreseeable careful use.” (Ibid.) A public entity’s liability for a dangerous condition of property “may ensue onlyif the property creates a substantialrisk of injury whenit is used with due care.” (Schonfeldt v. State ofCalifornia (1998) 61 Cal.App.4th 1462, 1466.) “‘A condition is not dangerous. . . unlessit creates a hazard to those who foreseeably will use the property or adjacent property with due care. Thus, even thoughit is foreseeable that persons may use public property without due care, a public entity may not beheld liable for failing to take precautions to protect such persons.’” ([bid.) Theplaintiff has the burden ofestablishing that the condition existed on property ownedbythe public entity at the time of the injury, and that the condition was dangerous, i.e., that it created a hazard to persons who foreseeably would use the property with due care. (Sambranov. City ofSan Diego (2001) 94 Cal.App.4th 225, 239.) Plaintiff also has the burden of showing that the public entity had actual or constructive notice of the dangerous condition of its property in sufficient time to have taken measuresto protect against that dangerous condition. (Brenner v. City ofEl Cajon, supra, 113 Cal.App.4th at p. 439.) 11 Whether property is in a dangerous condition ordinarily is a question offact, but if “no reasonable person would conclude the condition [of the property] created a substantial risk of injury when such property is used with due care in a mannerin whichit is reasonably foreseeable that it would be used,” then the question is one of law. (Lanev. City ofSacramento (2010) 183 Cal.App.4th 1337, 1344.) “*[W]here the circumstancesare similar, and the happeningsare not too remote in time, other accidents may be proved to show a defective or dangerous condition, knowledgeor notice thereof, or to establish the cause of an accident.’” (Genrich v. State ofCalifornia (1988) 202 Cal.App.3d 221, 227.) Before evidence of previous injuries can be admitted on the issue of whether the condition was a dangerousone,“‘“it must first be shownthat the conditions under which the alleged previous accidents occurred were the sameor substantially similar to the one in question.””” (Goebel v. City ofSanta Barbara (2001) 92 Cal.App.4th 549, 557.) The admissibility of evidence of prior accidentsis confinedto the trial court’s sound discretion. (Genrich, at p. 233.) With regard to third party conduct, “[a] public entity may beliable for a dangerous condition of public property even where the immediate cause ofa plaintiff's injury is a third party’s negligentorillegal act . . . if some physical characteristic of the property exposesits users to increased danger from third party negligence or criminality.” 66666However, “““[t]hird party conductbyitself, unrelated to the condition of the property, does not constitute a ‘dangerous condition’ for which a public entity may be held liable.”’” Rather, “[t]here must be a defect in the physical condition of the property and that defect must have somecausalrelationship to the third party conduct that injures the plaintiff.” As a result, “‘[p]ublic liability lies under [Government Code] section 835 only whena feature of the public property has“increased or intensified” the danger to users from third party conduct.’ [Citation.]” (Cerna v. City ofOakland (2008) 161 Cal.App.4th 1340, 1348.) Asa result, in order for there to be a dangerous condition wherethird party conduct is involved, the condition of the property must increase or intensify the risk of injury. (City ofSan Diego v. Superior Court (2006) 137 Cal.App.4th 12 21, 30.) In other words, the alleged “defect in the physical condition of the property must have somecausalrelationship to the third party conduct that actually injures the plaintiff.” (Zelig v. County ofLos Angeles (2002) 27 Cal.4th 1112, 1136.) “‘If the risk of injury from third parties is in no way increasedorintensified by any condition of the public property . . . courts ordinarily decline to ascribe the resulting injury to a dangerous condition of the property. In other words,there is no liability for injuries caused solely by acts ofthird parties. [Citations.] Such liability can arise only when third party conductis coupled with a defective condition of property.’ [Citations.]” (Jd. at p. 1137.) In Sun v. City ofOakland (2008) 166 Cal.App.4th 1177, the plaintiff attempted to cross a four-lane thoroughfare in an unmarked crosswalk. A driver saw the plaintiff step into the crosswalk and stopped for her, but the car travelling next to that driver failed to stop andhit the plaintiff when she walkedpassthefirst car. (/d. at p. 1181.) Plaintiff sought to show a dangerous condition of public property based upon the City’s failure to repaint the crosswalk markings after it repaved the street and installed bulb-out sidewalk extensions to make the intersection more “‘pedestrian friendly.’” (Ud. at p. 1184.) Plaintiffs contended the bulb-outs, which invited personsto cross the street, along with the traffic pattern on the street, contributed to the danger the intersection posed to pedestrians using it with due care. (Ud. at p. 1189.) Relying on Chowdhury, supra, 38 Cal.App.4th 1187, the court found that there was no unusual physical characteristic of the crosswalk wherethe plaintiff was killed, such as visual obstructions, which would establish a dangerous condition. “Here, the only risk of harm was from a motorist who failed to exercise due care” by not obeyingthetraffic laws requiring him to yield to a pedestrian. (Sun, at p. 1190.) In Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, a 14-year-old girl jumped to her death from the Golden Gate Bridge. (/d. at p. 24.) The plaintiff sought to establish a dangerous condition of public property because it lacked a suicide barrier in addition to the existing three and one-half foot high safety railing. “By definition, persons who use the bridge to commit suicide are not using 13 the bridge in a mannerused by the general public exercising ordinary care.” Milligan held the defendant wasnotliable for failing to provide a suicide barrier for those who would intentionally use the bridge without due care. (/d. at p. 7.) The issue here is whethera large tree in a median that is at least seven feet away from the street’s traffic lanes could constitute a dangerous condition of public property even when personsdriving on the street are exercising due care. Even considering plaintiff's excluded evidence, we conclude as a matter of law the magnoliatree in the median strip does not constitute a dangerous condition. There is nothing about Colorado Boulevard that would cause a person driving at or near the speed limit to suddenly veer into the magnolia trees. Plaintiffs do not contend the view of the median was in any way obscured suchthat the tree was a surprise obstacle in the roadway, or that the median and trees caused carsto travel at unsafe speed (including the freeway speedsthe plaintiffs’ decedents were traveling here) such that persons using the roadway with due care would be hit by such vehicles. (See Zelig v County ofLos Angeles, supra, 27 Cal.4th at p. 1136; City ofSan Diego v. Superior Court, supra, 137 Cal.App.4th at pp. 30-31.) In City of San Diego, the passengersin a car werehit by street racers that frequented a stretch of Imperial Avenuelocated in the city. The speed limit on the four-lane road was 50 miles an hour; the street racers, one ofwhom did not havethe car’s lights on, were traveling 85 miles per hour. (City ofSan Diego, at p. 26.) The plaintiffs contended poorstreet lighting prevented them from seeing the car that did not haveits lights on. (Ud. at p. 24.) City ofSan Diego rejected the contention the poorly lit condition of the street was a dangerous condition: relying on Zelig, the court concluded the road wasotherwise safe whenusedas intended by the public, and there was an insufficient nexus of causation between the condition and the accident. (Zelig, at p. 30-31.) 14 DISPOSITION The judgmentis affirmed. Respondentis to recoverits costs on appeal. CERTIFIED FOR PUBLICATION. JOHNSON,J. Weconcur: ROTHSCHILD,Acting P. J. CHANEY,J. 15 CERTIFICATE OF SERVICE I, Martin N. Buchanan, am employed in the County of San Diego, California. I am overthe age of 18 years and not a party to the within action. My business address is 600 B Street, Suite 1900, San Diego, California 92101. On Jan. L( 2013, I served the foregoing PETITION FOR REVIEWbymailing a copybyfirst class mail in separate envelopes addressed as follows: Sara Ugaz Clerk of Court Office of the City Attorney California Court of Appeal 900 City Hall East Second Appellate District, Div. One 200 North MainStreet 300 S. Spring Street, Second Floor, Los Angeles, CA 90012 N. Tower (Attorneys for Respondent) Los Angeles, CA 90013-1213 Hon.William F. Fahey Stanley Mosk Courthouse, Dept. 78 111 North Hill Street Los Angeles, CA 90012 I declare under penalty of perjury underthe lawsofthe State of California that the foregoing is true and correct. Executed on Jan. +/, Mg An don Martin N. Buchanan 2013, at San Diego, California.
