McDANIEL, J. I respectfully dissent for the reasons listed below.
A. City Failed to Produce Evidence That It Did Not Control Riverside Drive Near Its Intersection With Joy Street
This is an appeal from the granting of a motion for summary judgment. As the majority points out, “. . . all doubts should be resolved in favor of the party opposing the motion.” (Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 362 [212 Cal.Rptr. 395].) More specifically, as not noted by the majority, “. . . the moving party’s papers are strictly construed, while those of the opposing part[y] are liberally construed.” (Garcia v. Wetzel (1984) 159 Cal.App.3d 1093, 1095 [206 Cal.Rptr. 251].)
Simply put, plaintiff here alleged that the property which was in a dangerous condition was Riverside Drive “at or near” its intersection with Joy Street, and that the City of Lake Elsinore (City) owned, maintained or controlled that property. City, in its motion for summary judgment, alleged that it did not own, control or maintain such property, but in support of this allegation tendered as evidence only the declaration of City Engineer Ron Kirchner, who stated that City did not own or maintain Riverside Drive “at its intersection” with Joy Street.
Even without construing Kirchner’s declaration strictly, it is apparent that City only presented evidence that it did not own, maintain or control [1543]Riverside Drive “at” its intersection with Joy Street, and that it failed to present any evidence that it did not own, maintain or control Riverside Drive anywhere else, including “near” its intersection with Joy Street.
B. City Was Not Entitled to Judgment “As A Matter of Law” on the Basis of the Statutory Authority Cited by the Majority
Although the majority opinion does not squarely face the above-noted evidentiary problem, it is aware of its existence, and it is this awareness which apparently has motivated an attempt to premise the affirmance of the judgment below on another basis, i.e., that the trial court could properly rule against plaintiff, as a matter of law, pursuant to Streets and Highways Code section 1806 and Vehicle Code sections 21100, 21101, 21104, and 21351. As demonstrated below, affirmance on such basis cannot be justified and operates to deny plaintiff his right to procedural due process.
1. Vehicle Code Sections 21100, 21101, 21104 and 21351 Cannot Form a Basis for Affirmance
Specifically, the majority uses the fact that “[plaintiff] has not pointed out any such resolution or ordinance [adopting regulatory power over the property in question]” (maj. opn., ante, p. 1540) as the basis for its conclusion that the trial court was entitled to rule as a matter of law, pursuant to Vehicle Code sections 21100, 21101, 21104 and 21351, that City had no control over the intersection. Use of these sections is improper for three reasons.
a. Plaintiff Had No Notice That the Motion Would Be Based on Such Code Sections.
Neither in its answer, nor in its motion for summary judgment, nor in its respondent’s brief, nor in its oral argument did City raise Vehicle Code sections 21100, 21101, 21104, or 21351. Therefore, because the majority has itself raised these sections, plaintiff has been precluded from doing any discovery on, or briefing any legal arguments related to, their applicability. The use of these new code sections as a statutory defense to plaintiff’s case, raised sua sponte on appeal, is thus a denial of due process and legally improper.
b. Such Code Sections Could Not Have Been a Basis for the Trial Court’s Decision.
The trial court, never having been presented with this issue or with the Vehicle Code sections noted above, obviously could not have relied upon them as a basis for its decision, and certainly demonstrated no indication, in [1544]its judgment or elsewhere, that it had decided against plaintiff “as a matter of law” rather than on the basis that there was no triable issue of material fact.
It is true, of course, that a summary judgment can and should be upheld if the trial court’s decision was correct, even if not for the reasons stated. (Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 682 [187 Cal.Rptr. 219].) However, this rule applies only when, as a matter of law, the complaint fails to state a cause of action, and the motion for summary judgment can, in essence, be treated as a motion for judgment on the pleadings. (Ibid., and see also cases cited thereat.) Such is not the case here. Plaintiff adequately pleaded a cause of action for a public entity’s liability for maintaining public property under its ownership or control in a dangerous condition.
c. Such Code Sections Do Not Sufficiently Negate Plaintiff's Theory of Liability Based on Control of Property in a Dangerous Condition to Justify a Judgment in Favor of City.
A defendant moving for summary judgment must disprove all possible causes of action or theories of recovery set out in a plaintiff’s complaint before it is entitled to summary judgment. (Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 639-640 [177 Cal.Rptr. 445]; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter, 1989) § 10:126.)
Here, the Vehicle Code sections relied upon by the majority do not fully “cover the field” as to the manner in which a city can obtain sufficient control over a state highway to render it potentially liable if the property is maintained in a dangerous condition, and thus City is not entitled to summary judgment.
For example, Streets and Highways Code section 116 indicates that a city may acquire any part of the state’s powers and jurisdiction over a state highway through a means other than a resolution or ordinance submitted to the Department of Transportation for its approval. Section 116, entitled, “Delegation of powers to city or county,” provides: “The department [of Transportation] may delegate to any such city or county any part of the powers and jurisdiction vested by law in the department, except the power of approval, with respect to any portion of any such state highway within such city or county, and may withdraw such delegation.”
In addition, Streets and Highways Code section 130, entitled “Cooperative agreements with county, city, or joint highway district,” provides, in relevant part: “The department and any county, city, or joint highway [1545]district, or any of them, may enter into a contract in respect to the proportion of the expense of the acquisition, construction, improvement or maintenance of any state highway to be borne by the respective parties to such contract. Any such contract may provide for the . . . doing of the work, or any portion thereof, by any party to the contract, pursuant to the laws governing such party with reference to such type of acquisition or such character of work.” (Italics added.)
Thus, it would appear, regardless of the Vehicle Code sections relied upon by the majority, that City here could have entered into such a cooperative agreement with the state (a “maintenance agreement” such as was referred to in the declaration of plaintiff’s expert witness, Crommelin, and that such an agreement could have given City the requisite kind of control over the property to subject it to liability if the property was maintained in a dangerous condition.
Furthermore, the Vehicle Code sections relied upon by the majority relate only to the local regulation of traffic on state highways. (See Veh. Code, § 21100 (d).) The majority opinion approaches the analysis in this case as though the only possible theory of liability must be based on City’s failure to properly regulate “traffic by means of official traffic control devices . . . .” (Veh. Code, § 21100.) However, plaintiff’s theory of liability is premised upon a “dangerous condition” of public property. Plaintiff alleged that the property was in a dangerous condition because of the defendant’s failure to provide “adequate street lighting, traffic control signals, [and] crosswalks,” and because they “were otherwise negligent in constructing and maintaining said roadway at the time and location of the subject accident.”
Thus, the Vehicle Code sections relied upon by the majority are insufficient to demonstrate, even as a matter of law, that City has disproved totally one essential element of plaintiff’s case, i.e., its complete lack of control over the property or lack of responsibility for any construction defects. For all we know from the current state of the record, the accident may have been caused in whole or in part by visibility problems related to road maintenance or construction, by engineering-related problems such as how the road was banked or curbed or narrowed, or by any number of such matters which could create a dangerous condition on the subject property.
2. Streets and Highways Code Section 1806 Cannot Form a Basis for Affirmance
The majority also makes a brief reference to Streets and Highways Code section 1806 as though that section is further authority for its position that [1546]City could not have exerted any control over the subject property in the absence of a resolution, and that, therefore, plaintiff having failed to produce evidence of such a resolution, the granting of summary judgment was proper.
There are three basic problems with the majority’s reliance on section 1806.
a. City Did Not Raise Section 1806 in a Timely Manner.
Although City did raise Street and Highway Code section 1806 as an affirmative defense in its answer (unlike the other Vehicle Code sections raised, sua sponte, by the majority), City did not raise section 1806 as a ground for its motion for summary judgment, and instead simply quoted the language of section 1806 in its reply to plaintiff’s opposition to the motion for summary judgment.
A moving party is required to state the grounds upon which a motion is made in its notice of motion. (Code Civ. Proc., § 1010.) The purpose of this requirement, of course, is to fairly apprise the opposing party of the issues involved so that he or she has notice and an opportunity to respond to the issues in the opposing papers. Raising an issue for the first time in one’s reply papers is an obvious method to avoid giving one’s opponent the requisite opportunity and time to respond mandated by Code of Civil Procedure section 437c, and one which we should not countenance.
Here, City merely stated that its motion was made “on the ground that no triable issue of fact exists and the action has no merit in that [it] did not own or control the public property referred to in plaintiff’s complaint.” Although documents referred to in the notice and attached to it may be considered to determine the sufficiency of the notice to apprise the opposing party of the issues raised (Tarman v. Sherwin (1961) 189 Cal.App.2d 49, 51-52 [10 Cal.Rptr. 787, 85 A.L.R.2d 989]), the accompanying documents here, i.e., the memorandum of points and authorities and supporting declarations, never mentioned either section 1806 or anything at all remotely related to the existence or nonexistence of resolutions and/or ordinances concerning the subject property. Therefore, the trial court could not have considered section 1806 as a basis for granting the motion (and in fact there is no reason to think that it did), and the majority certainly should not now use this section to affirm on appeal. (See Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 373 [178 Cal.Rptr. 783, 636 P.2d 1121]: “[Respondents’ moving papers gave little warning, prior to the filing of the reply memorandum of points and authorities, that they would seek summary judgment on the ground that the failure to take steps to control the [1547]landslide was reasonable. It is, then, understandable why appellant did not marshall extensive facts addressing a contention not made in the respondents’ moving papers. (See Webster v. Southern Cal. First Nat. Bank (1977) 68 Cal.App.3d 407, 416 [137 Cal.Rptr. 293].) When this contention was made, only two days remained before the hearing on the motion. For these reasons, the summary judgment should not have been granted.”)
b. City Did Not Produce Any Evidence to Support Its Belated Reliance on Section 1806.
When the party moving for summary judgment is the defendant, as here, it must “either negate a necessary element of the plaintiff’s case or state a complete defense. [Citation.]” LaRosa v. Superior Court (1981) 122 Cal.App.3d 741, 744-745 [176 Cal.Rptr. 224]; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, at § 10:125.) This means that the defendant moving party must do more than point to the opposing party’s lack of evidence—the defendant has the burden of producing evidence to support its defense. (Vesely v. Sager (1971) 5 Cal.3d 153, 169-170 [95 Cal.Rptr. 623, 486 P.2d 151]; Pena v. W. H. Douthitt Steel & Supply Co. (1986) 179 Cal.App.3d 924, 928-929 [225 Cal.Rptr. 76] and cases cited therein.)
Here, of course, City simply argued that plaintiff had not produced any resolution or ordinance; it did not affirmatively produce evidence, which it could have done by way of declaration if such declaration could be truthfully made, that there were no relevant resolutions or ordinances.
c. City’s Reliance on Section 1806, Even If It Had Been Timely and Even If It Had Been Supported by Evidence, Is Still Insufficient to Negate All Plaintiff’s Possible Theories of Recovery Based on City’s Alleged Control of the Subject Property.
A defendant moving for summary judgment must disprove all possible causes of action or theories of recovery set out in a plaintiff’s complaint. (Conn v. National Can Corp., supra, 124 Cal.App.3d 630, 639-640; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, at § 10:126.) Here, even assuming City had properly raised the defense of Streets and Highway Code section 1806, the existence of section 1806 in no way negates all plaintiff’s possible theories of recovery.
Streets and Highways Code section 1806 was enacted to abrogate the holding in Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 244 [267 P.2d 10] that no formal acceptance of an offer of dedication of a road or street is necessary, and that an implied acceptance of dedication to a [1548]public use is a sufficient basis on which to hold that a public entity has accepted the road or street into its road system with the concomitant responsibility for making repairs on such a road or street.
The statutory abrogation of the court-created doctrine of implied acceptance of dedication, however, in no way negates the fact that a city may contractually accept responsibility for maintaining, improving, or even constructing sections of state highways pursuant to Streets and Highways Code sections 116 and 130, as discussed supra, without reference to the entirely separate process by which the dedication of public and private roads and streets may be formally accepted into the city’s street system.
Thus, the existence of Streets and Highways Code section 1806 in no way completely negates plaintiff’s claim that City had some form of control over the subject property, and it therefore cannot form the basis for affirmance of the summary judgment in City’s favor.
C. The Award of Attorney’s Fees and Costs as Sanctions Must Be Reversed
1. The Award Should Be Reversed Because the Judgment Should Be Reversed
Because the judgment should be reversed, it necessarily follows that the award of attorney’s fees and costs as sanctions should be reversed as well; the language of Code of Civil Procedure section 1038 makes it clear that such an award may only be made in connection with the granting of a summary judgment. However, even assuming for purposes of argument that the judgment should be affirmed, the majority opinion fails to demonstrate that the award of sanctions against plaintiff is justified.
2. The Majority Opinion’s Reliance on Searcy Fails to Demonstrate That Plaintiff’s Filing of This Action Against City Was Unjustified
According to the majority, plaintiff’s initial filing of his complaint against City was unjustified, pursuant to the holding in Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792 [223 Cal.Rptr. 206]. The majority’s reliance on Searcy as a basis to affirm the award of attorney’s fees and costs to City against plaintiff is misplaced.
In Searcy, one of plaintiff’s causes of action was based on Government Code section 815.6, which provides, when a public entity is under a mandatory duty imposed by an enactment designed to prevent a particular type of harm, that the entity will be liable for an injury of that kind if it failed to [1549]discharge such mandatory duty. Plaintiff in Searcy failed to specify the particular enactment which created a mandatory duty as required in a cause of action based on Government Code section 815.6, and it was in that context that the Searcy court held that plaintiff, by failing to cite a particular code section or regulation in her complaint, had failed to adequately state a cause of action under Government Code section 815.6.
Here, of course, plaintiff is not proceeding under Government Code section 815.6, but instead has pleaded a cause of action pursuant to Government Code section 835:
“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 that either:
“(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.”
A cause of action brought pursuant to Government Code section 835, unlike a cause of action brought pursuant to Government Code section 815.6, does not require as an element that plaintiff plead that the defendant public entity was under a mandatory duty imposed by a specific enactment. It simply requires plaintiff to plead that (1) the property was in a dangerous condition at the time of the injury; (2) that the injury was caused by the dangerous condition; (3) that the dangerous condition created a reasonably foreseeable risk of the occurrence of such an injury; and that (a) the dangerous condition was negligently or intentionally created by one of the entity’s employees or (b) the entity knew of the dangerous condition in time enough to correct it but failed to do so. Plaintiff here did so plead, and the majority’s conclusion that “Ramsey has failed to justify the initial filing of the complaint or the continued maintenance of his action against the City” [maj. opn., ante, p. 1542] is simply an inaccurate assessment based on a misreading of Searcy.
[15503]. The Majority’s Reliance on City’s Unsworn Statements to Plaintiff’s Attorney Before the Action as a Basis for Finding the Initial Filing of the Complaint Was Unjustified Creates an Unworkable Conflict of Interest for Attorneys
The majority opinion contains a troubling passage concerning plaintiff’s attorneys’ duties vis-a-vis their clients versus their potential liability for attorney’s fees and costs as sanctions pursuant to Code of Civil Procedure section 1038. In my opinion, the standard of proof of good faith in filing a lawsuit against a public entity, as delineated in its application by the majority to the facts of this case, creates an unworkable conflict of interest for plaintiff’s attorneys.
According to the majority, “At a minimum, the standard of reasonable cause requires that the plaintiff’s attorney have some articulable facts on which he can conclude that a particular person should be named as a defendant. Here, [plaintiff] failed to raise any legitimate issue of the City’s ownership or control of property where the accident occurred. . . . The City had assured [plaintiff’s] former attorneys before the complaint was filed that the City had no control over Riverside Drive, alleged to be the site of the accident. The State admitted that it did own that intersection. We find it noteworthy that the State did not file any cross-complaint against the City.” [Maj. opn., ante, pp. 1540-1541, italics added.]
This passage is troubling for the following reasons:
First, plaintiff did raise a legitimate issue regarding City’s ownership or control by alleging that “Riverside Drive and Joy Street were public streets and highways in the City of Elsinore, County of Riverside, and State of California,” and by alleging that the accident occurred at or near the two-ways’ intersection.
Second, attorneys are required diligently to represent their own clients’ interests. This means that they cannot rely on potential defendants’ “assurances” that the defendants are not liable as a basis for deciding not to name someone as a defendant; a self-serving representation by an interested party hardly rises to the level of dispositive truth. If one were to carry the majority’s reasoning to its logical conclusion, a plaintiff would be required to dismiss his or her action upon a public entity’s filing of a general denial.
Here, City’s “assurance” consisted of, at best, the following two letters:
[1551]A first letter from City’s claims administrators to plaintiff’s then attorneys, advising them that the claims administrators had advised City to reject plaintiff’s claim because the incident in no way involved City, because it “occurred at the location of State Highway 74 at the intersection of Joy Street. Highway 74 is owned and maintained by the State of California” (italics added), and warning plaintiff’s attorneys that if plaintiff chose to pursue City, City would seek the remedies provided by Code of Civil Procedure section 1038.
A second letter from City’s city engineer addressed to defendant and cross-complainant Gray’s attorney, not to plaintiff’s attorneys {nor is there any indication that plaintiff’s attorneys were sent a courtesy copy), which stated in its entirety:
“I, Ron Kirchner, City Engineer for this City of Lake Elsinore, do hereby declare that the City of Lake Elsinore did not in 1986 have ownership or control of State Route 74 near Joy Street.
“I further declare that this location is within the exclusive jurisdiction of the State of California.” (Italics added.)
Neither of these letters supplies the kind of solid evidence which a reasonable attorney would need in order to decide not to name a public entity as a defendant. Neither letter explains the evidentiary basis upon which City’s claim of nonownership or control is based, and neither letter lays any foundation to demonstrate the letter writer’s personal knowledge of City’s lack of ownership or control. Additionally, neither letter is made upon penalty of perjury.
Third, the state’s admission of ownership came after City had been named in the complaint, and, in any event, admission of ownership is not admission of maintenance and control, an entirely separate potential basis of liability.
Fourth, the fact that the state failed to file a cross-complaint against City is irrelevant unless one knows why the state did not file a cross-complaint. The majority assumes that it must have been because the state had unassailable information indicating that City had no liability under any theory. However, it might be that the state’s attorneys simply did not consider filing such a cross-complaint, or had not themselves thoroughly investigated City’s potential liability. Unsupported speculation cannot form any basis for [1552]coming to the serious conclusion that an attorney filed a lawsuit in bad faith.
For the reasons noted above, I would reverse the judgment in its entirety.