Berven v. County of San Joaquin CA3

Filed 1/28/15 Berven v. County of San Joaquin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

JAMES D. BERVEN , C075243

Plaintiff and Appellant, (Super. Ct. No. 39200900228706CUPASTK) v.

COUNTY OF SAN JOAQUIN et al.,

Defendants and Respondents.

Plaintiff James D. Berven (Berven) sued the County of San Joaquin (County) and Eric Eugene Gargan (Gargan) for injuries Berven received when a County work truck driven by Gargan collided with Berven and his motorcycle. The jury returned a special verdict answering “No” to the question, “Was defendant E[ric] G[argan] negligent?” Berven’s sole contention on appeal is that the trial court erred in giving special instruction No. 9, which allowed the jury to find that “[t]he Vehicle Code traffic laws do not apply to public employees and . . . motor vehicles . . . while actually engaged in work upon the surface of a highway, or work of installation, removal, repairing, or maintaining

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official traffic control devices” but the laws “do apply to those persons and vehicles when traveling to or from their work.” This instruction was based on Vehicle Code sections 21053 and 21054, which contain almost identical language. We hold that the trial court correctly instructed the jury because it was a factual question whether Gargan was “actually engaged in work upon the surface of a highway, or work of installation, removal, repairing, or maintaining official traffic control devices.” And there was evidence to show that Gargan was actually engaged in such work when the collision occurred, namely, that he was positioning his work truck to be a barrier necessary to ensure his and his coworker’s safety in the work zone of the intersection. FACTUAL AND PROCEDURAL BACKGROUND A Facts At Trial The collision occurred at the T-intersection of Tracy Boulevard and Howard Road. Howard Road runs east-west and dead ends into Tracy Boulevard, which runs north- south. Just before the intersection, Howard Road widens so there is room for two westbound lanes. Earlier in the day before the collision, Gargan and his work partner, Billy Joe Hedrick, had partially painted traffic control devices on Howard Road close to where it intersects Tracy Boulevard. They had painted the word “STOP” in the westbound lane and had painted a portion of the stop bar limit line directly in front of the word “STOP.” These “pavement markings” are considered “traffic control devices.” Gargan considered his work zone to be the intersections where he was doing the work.