Burke vs. City of Newport Beach

not sufficiently allege when the actions alleged occurred for purposes of the statute of limitations.

If Plaintiff chooses to amend, Plaintiff is ORDERED to file a red-lined and clean version of the amended pleading.

Clerk to give notice.

Motion to Strike Portions of Complaint

Defendants David Byungik Oh and The Happier Church’s Motion to Strike Portions of Plaintiffs’ Complaint is GRANTED with 10 days leave to amend.

With respect to Plaintiff’s second cause of action, Plaintiff does not allege sufficient facts to support a request for punitive damages. (See Compl. ¶ 11.)

If Plaintiff chooses to amend, Plaintiff is ORDERED to file a red-lined and clean version of the amended pleading.

Clerk to give notice.

9 Buriyev vs. Demurrer to Petition for Writ of Mandate California Vacated – first amended petition was filed. Unemployment Insurance Appeals Board 30-2026- 01533151-CU- WM-CJC 10 Burke vs. City of Motion for Summary Judgment and/or Summary Newport Beach Adjudication 30-2024- Defendant City of Newport Beach motion for summary 01436236-CU- judgment or in the alternative summary adjudication PA-CJC GRANTED.

Defendant’s request for judicial notice (“RJN”) is GRANTED. (Evid. Code, § 452, subd. (d).)

Defendant’s evidentiary objections (ROA 172) are OVERRULED.

The court declines to rule on Plaintiff’s objections (ROA 147 & 166) because they are not numbered consecutively. (Cal. Rules of Court, rule 3.1354(b); see Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 9 [court may decline to rule on objections not filed in conformity with formatting rules nor is court required to give party second chance at filing properly formatted objections].) The court also declines to consider objections stated in Plaintiff’s responsive separate statement (ROA 131) because they do not refer to specific evidentiary objections by objection number and they restate and reargue the objections. (Cal. Rules of Court, rule 3.1354(b); see Hodjat, supra, 211 Cal.App.4th at p. 8.)

Plaintiff purports to dispute Defendant’s Undisputed Material Facts (“UMF”) Nos. 9, 11, 14-16, 19, 20, 22-24, 28-35, 39, 44-49, 51-56, and 59. (See ROA 131.) However, Plaintiff fails to reference evidence supporting her position that the facts are disputed as required by California Code of Civil Procedure, section 437c, subdivision (b)(3) and California Rules of Court, rule 3.1350(f)(2). “Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd.(b)(3); see also Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 72-73; Champlin/GEI Wind Holdings, LLC v. Avery (2023) 92 Cal.App.5th 218, 226-227 [failure to file a timely opposition, including a separate statement with any supporting admissible evidence was sufficient grounds to grant summary judgment].)

The court will not consider Defendant’s evidence submitted on reply. (See Code Civ. Proc., § 437c, subd.(b)(4).)

Complaint

Plaintiff alleges causes of action for dangerous condition of public property (Gov. Code, §§ 830, 835 et seq.) and failure to warn of dangerous condition of public property (Gov. Code, §§ 830, 830.6, 830.8, 835 et seq.)

Design Immunity for Dangerous Condition of Public Property

The affirmative defense of design immunity shields public entities and employees from liability for injuries caused by a plan or design of public property, provided three elements are met. “A public entity claiming design immunity must show the existence of three elements, (1) [a] causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; [and] (3) substantial evidence supporting the reasonableness of the design.” (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939 [cleaned up] (Grenier); Govt. Code, § 830.6.)

The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design. (See Rodriguez v. Department of Transp. (2018) 21 Cal.App.5th 947, 954.)

Design immunity is often raised on summary judgment. (Stufkowsky v. Department of Transp. (2023 97 Cal.App.5th 492, 498 (Stufkowsky).) However, courts apply a modified standard departing from the ordinary summary judgment rules in significant ways.

The normal rules governing a motion for summary judgment, and requiring its denial if any triable issue of fact appears, are not fully applicable to cases involving design immunity under Government Code section 830.6 (Stufkowsky, supra, 97 Cal.App.5th at p. 497.) The defendant is not required to prove the design or plan was in fact a reasonable one; instead, the defendant is merely required to adduce any substantial evidence a reasonable public employee or legislative body could have approved the plan or design. (Ibid.) Thus, when the defendant files a motion for summary judgment, the existence of a possible conflict of evidence, as shown by the proof submitted on the motion, will not create a triable issue on the reasonableness aspect of the defense that can defeat summary judgment. (Ibid.)

The court is to determine whether there is any substantial evidence upon the basis of which a reasonable public employee could have adopted the plan or design. (Gov. Code, § 830.6.) A public entity must be granted design immunity even if reasonable minds can differ concerning whether a design should have been approved; the statute does not require property be perfectly designed, only that it be given a design that is reasonable under the circumstances. (See Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 946.)

1. Causal Relationship

Defendant points to Plaintiff’s allegations in her complaint to support the element of causation. A defendant “may rely on the allegations of the complaint to establish causation.” (Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550.)

Plaintiff’s complaint alleges the Subject Intersection and adjacent area were a dangerous condition due to “one or more of the following reasons: (i) the absence of reflective markings and/or devices; (ii) the absence of sufficient traffic control devices warning motorists of pedestrian traffic; (iii) the complete absence of reduced speed warnings and/or devices; (iv) the complete absence of speed reduction devices; (v) pedestrian present/in the crosswalk warnings or devices; (vi) the impaired and obstructed visibility of pedestrians in the crosswalk at the Subject Intersection; (vii) the impaired and obstructed visibility of westbound Balboa motorists approaching the Subject Intersection; (vii) the complete absence of any traffic signs and/or devices warning pedestrians and/or motorists of the impaired and obstructed visibility at and about the Subject Intersection; and (viii) that drivers regularly drove in a dangerous and reckless manner, which Defendant knew and should have known through their agents and agency relationships.” (RJN, Ex. 1 [Complaint], ¶¶ 22.)

“Plaintiff’s injuries were a direct result of Defendants’ actions and omissions” including, “Defendants’ negligent, unsafe, improper, and inadequate ownership, control, use, operation, management construction, maintenance, repair, design, and supervision of said property at and near the location of the incident.” (Compl. at ¶¶ 30, 32.) “To the extent the design of the Subject Intersection and surrounding area was approved, said approval was unreasonable and constituted a manifest abuse of discretion, or was otherwise negligent by failing to address the applicable engineering standards and conditions then existing or reasonably contemplated to exist in the future, once said design was implemented.” (Id. at p. 34).

Plaintiff is necessarily complaining her accident was caused by the design of the Subject Intersection. Plaintiff’s own allegations establish the causal link between the design of the Subject Intersection and Plaintiff’s accident. Defendant has met its burden as to the first element of design immunity.

2. Discretionary Approval

“The second element, discretionary approval prior to construction, simply means approval in advance of construction by the legislative body or officer exercising discretionary authority. A detailed plan, drawn up by a competent engineering firm, and approved by a city engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval.” (Grenier, supra, 57 Cal.App.4th at pp. 940– 941.) The immunity applies to the consequences of the plan or design, and that can include intentional omissions to not include certain designs or features. (See Sutton v. Golden Gate Bridge, Highway & Transp. Dist. (1998) 68 Cal.App.4th 1149, 1159-1161 (Sutton) [design decisions can include decisions to omit features].)

The undisputed material facts establish Defendant adopted three plans via review and approval by its Public Works Director, City Engineer and/or City Traffic Engineer: (1) in 2002, the City of Newport/Balboa Roadway Rehabilitation and Storm Drain Improvements (AHRP STPL-0515-016); (2) in 2018, the City of Newport Beach Public Works Department Balboa Peninsula Crossing Signing and Striping Improvements, Plan T- 6039-S (“Plan T-6039-S”); and (3) in 2023, the City of Newport Beach Public Works Department Signing and Striping Improvement Plan, T-6085-S (“Plan T-6085-S”) (collectively, the “Plans”). (UMF 30, 36-38, 42.)

The undisputed material facts also establish in 2017, Defendant contacted a traffic engineering consultant, Albert Grover Associates, to conduct a study of all the pedestrian crossings on the Balboa peninsula (“Peninsula Study”). (UMF 31.) The Peninsula Study, which included the Subject Intersection, concluded, among other things, there were relatively few reported collisions involving pedestrians in consideration of the popularity of the area. (UMF 32.) The Peninsula Study recommended various conceptual improvements at each uncontrolled crosswalk, including recommendations not to use (1) yellow flashing treatments at the uncontrolled crosswalks, (2) triangular yield markings on the roadway surface in front of each crosswalk at Balboa Blvd. and 20th Street; and (3) a device that activates a warning when a pedestrian is present at the location. (UMF 34.)

Taken together, the plans adopt and approve, consistent with the Peninsula Study, all conditions of the Subject Intersection placed at issue by the Complaint (i.e., the curve design of the roadway near the Subject Intersection, the type of traffic control or reduction devices to be used or not used in connection with the roadway, and high visibility continental markings, signs and/or warnings to be utilized or not utilized in connection with the crosswalk) as they existed on the date of the accident. (UMF 18, 20, 21, 27, 29, 31, 34-36, 39, 41, 43, 54.) Defendant has met its burden on the second element.

3. Substantial Evidence of Reasonableness

Substantial evidence to establish the third element of the design immunity defense may consist of the following: “Discretionary approval of the design plans themselves; the expert opinion of a civil engineer as to the reasonableness of the design; or evidence the design or plan complies with prevailing professional standards. A mere conflict in the testimony of expert witnesses provides no justification for the matter to go to a lay jury who will then second-guess the judgment of skilled public officials.” (Menges v. Department of Transportation (2020) 59 Cal.App.5th 13, 21 [cleaned up].) “Generally, a civil engineer’s opinion regarding reasonableness is substantial evidence sufficient to satisfy this element.” (Grenier, supra, 57 Cal.App.4th at p. 941.)

Defendant offers the declaration of Rock Miller, Defendant’s expert Civil Engineer, who opines the Intersection traffic controls including roadway markings and traffic signs provided for in Plan T-6085-S and Plan T- 6039-S are reasonable and would have been approved by a reasonable, knowledgeable, and qualified engineer. (UMF 44.) He attests the location of the crosswalk to have been reasonable despite it being near a curvature in the roadway (as reflected in the Plans) providing more than sufficient sight distance of the roadway ahead to stop, if necessary. (UMF 28.)

He also opines improvements employed by the City at the Accident site (1) are consistent with the recommendations of the Peninsula Study (UMF 35), (2) exceed all applicable government standards, and (3) created a roadway which would have allowed a driver exercising reasonable due care to see a pedestrian lawfully within the crosswalk and yield accordingly. (UMF 44, 46, 49, 55.) Lastly, he confirms there have been no substantial changed conditions or collision history at or near the Intersection that would affect the reasonableness of the design of the Subject Intersection as reflected in Plan T-6085-S and Plan T- 6039-S. (UMF 45.)

In opposition, Plaintiff spends less than 2 pages on the design immunity issue, instead focusing primarily on dangerous condition. But even assuming for purposes of analysis a dangerous condition exists, design immunity, as the name suggests, makes Defendant immune from liability.

Plaintiff argues Defendant has not established any of the elements of the design immunity because Defendant has not offered evidence that significant features of the Subject Intersection alleged to be the cause of the dangerous condition were considered (to any extent) and approved in a design plan. According to Plaintiff, these “significant features” include parking along and trees in the center median of Balboa Blvd.; curvature of the Balboa Blvd. for westbound traffic; and the absence of appropriate traffic control measures to protect pedestrians.

However, as mentioned above, design immunity applies to the consequences of the plan or design, which can include intentional omissions not to include certain designs or features. (See Sutton, supra, 68 Cal.App.4th at pp. 1159-1161; see also Rodriguez v. Department of Transp., supra, 21 Cal.App.5th at pp. 959-960 [where an alleged dangerous feature is part of the approved plans, even though not specifically mentioned or considered, design immunity applies].)

As to the center median trees, which Plaintiff alleges is a feature of the dangerous condition, Plaintiff also argues it does not matter whether Defendant submitted relevant design plans in support of its Motion. According to Plaintiff, no one could approve the plans related to the center median trees because Defendant’s own City Standards were not complied with. Namely, per Defendant’s Project Manager and Defendant’s CS 105, the Revitalization Plan designs were required to incorporate sight distance analyses regarding the Subject Intersection but did not.

However, the evidence establishes CS 105 does not apply to the Balboa Blvd./20th Street Intersection. CS 105 is a standard employed by Defendant for intersection sightlines “for side streets as they exit on the main roadways;” in other words, it applied to “20th street specifically entering Balboa Boulevard.” (Perry Decl. ISO Opposition to Motion, Ex. 17 at p. 34:7-14.) Defendant has met its burden as to the third element.

Failure to Warn

“Section 830.8 provides a second form of immunity, precluding public entity liability ‘for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code.’ (§ 830.8.) Section 830.8, however, sets forth a limitation to such immunity: ‘Nothing in this section exonerates a public entity ... from liability for injury ... caused by such failure if a signal, sign, marking or device ... was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.’ This limitation to section 830.8 immunity is commonly referred to as the ‘concealed trap’ exception.” (Tansavatdi v.

City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 654.) If plaintiff is unable to establish the absence of a warning sign was a substantial factor in causing the injury, the claim will fail. (Id. at p. 661.)

Hence, Plaintiff must prove “(1) the public entity had actual or constructive notice that the approved design resulted in a dangerous condition (see §§ 835, subd. (b), 835.2 [defining ‘notice’ within the meaning of § 835, subd. (b)]); (2) the dangerous condition qualified as a concealed trap, i.e., ‘would not [have been] reasonably apparent to, and would not have been anticipated by, a person exercising due care’ (§ 830.8); and (3) the absence of a warning was a substantial factor in bringing about the injury.” (Tansavatdi, supra, 14 Cal.5th at p. 662.)

Here, the undisputed material facts establish: the crosswalk markings and standard warning signs are present at the Subject Intersection to indicate the presence of a crosswalk (UMF 51, 53); the signage includes a yellow Caltrans Standard PED XING sign in the median at the left end of the crosswalk facing westbound, together with an arrow sign with arrows pointing down toward the ends of the crosswalk as they pass the median placed directly in front of approaching motorists (UMF 21- 22); traffic striping and controls at the Subject Intersection meet or exceed the California Manual on Uniform Traffic Control Devices (“CA MUTCD”) requirements (UMF 44, 49); one traffic sign on the median advising of the crosswalk exceeds CA MUTCD requirements (UMF 46); the speed limit for the area is either 25 or 30 mph (UMF 14-15); the marked uncontrolled crosswalk across the east leg of Balboa Blvd at 20th Street is marked with high visibility continental markings and a transverse limit line (UMF 18-20); there are no visible obstructions in the area and lengthy sight distances for pedestrians and drivers (UMF 23-26); the design of the curvature of the roadway of westbound Balboa Boulevard approaching the Subject Intersection is reasonable and provides more than sufficient sight distance of the roadway ahead for a driver, pedestrian, or both, to stop or adjust their speeds, if necessary (UMF 28); there is no additional traffic control measure that would have been required by the CA MUTCD for the Subject Intersection and crosswalk, based upon traffic volume, pedestrian volume, collision history, and the physical conditions present at the intersection (UMF 52); during the 10 years prior to the Accident, approximately 500,000 pedestrians used the subject crosswalk and 77 million vehicles entered the Intersection, and there were only nine reported collisions involving pedestrians (UMF 47); and no conditions exist at the Subject Intersection that would have prevented a driver exercising reasonable due care from seeing pedestrians lawfully within the crosswalk and yielding accordingly (UMF 55).

Further, pursuant to Vehicle Code section 21950, while a driver must yield the right-of-way to a pedestrian crossing the roadway, nothing therein relieves a pedestrian from the duty of using due care for his or her own safety. (Veh. Code, § 21950, subds. (a), (b).) Instead, both parties owe a duty of due care to each other. (Id., § 21950, subds. (b), (c).)

Given this mandate, the high visibility of the crosswalk and the signage, and the significant line of sight available to both pedestrians and motorists utilizing the Subject Intersection, Defendant has established there was no failure to warn of a concealed trap.

Plaintiff’s opposition fails to address the second cause of action for failure to warn.

Defendant to submit a proposed judgment within 5 days.

Clerk to give notice.

11 Star vs. TopRank Motion for Summary Judgment and/or Summary Motorworks Inc. Adjudication 30-2024- Defendant Toprank Motorworks, Inc.’s motion for 01434530-CU- summary judgment, or in the alternative for summary BC-CJC adjudication, on all causes of action alleged in plaintiff Keven Star’s Complaint is DENIED.

The court declines to rule on Toprank’s Evidentiary Objections to Plaintiff’s evidence as they are not material to the disposition of the Motion.

Breach of Implied Warranty of Merchantability under the Song-Beverly Consumer Warranty Act (SBA):

Plaintiff has shown there are triable issues of material fact as to whether the used 1995 Nissan GT-R Vspec (“Subject Vehicle”) Plaintiff purchased from Toprank was sold with an express warranty.