Stein v. City of San Diego CA4/1 (2013) · DecisionDepot
Stein v. City of San Diego CA4/1
California Court of Appeal Apr 17, 2013 No. D061428Unpublished
Filed 4/17/13 Stein v. City of San Diego CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MARC STEIN, D061428
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00086918- CU-PO-CTL) CITY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, Gonzalo
Curiel, Judge. Affirmed.
Marc Stein brought suit against the City of San Diego (the City) after he tripped
over a median while crossing the street and was injured. The City brought a motion for
summary judgment, which the court granted.
Stein appeals, contending the superior court erred in granting summary judgment
because the court should have found the City had a duty to provide adequate lighting.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Stein had been at Mission Beach collecting cans and using his metal detector for
approximately four and one-half hours when he decided to leave. Although he had used a
crosswalk to get to the beach, he decided to take a more direct route back to his car and
crossed Mission Boulevard midblock between Deal and Coronado Courts. It was about
862.) "We are not bound to develop appellants' argument for them. [Citation.] The
absence of cogent legal argument or citation to authority allows this court to treat the
contention as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,
830.)
Here, Stein raises only one issue in his opening brief: The superior court erred in
concluding as a matter of law the City did not have a duty to provide lighting where Stein
crossed Mission Boulevard. Although Stein argues his "other claims also benefit by this
same principle and the Superior Court erred in concluding otherwise in its grant of
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summary judgment[,]" he fails to explain how the court's allegedly flawed conclusion
impacts any other issue involved in the summary judgment. As such, we deem all other
issues related to the minute order waived. (See Nelson v. Avondale Homeowners Assn.,
supra, 172 Cal.App.4th at p. 862.)
"On appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all the evidence set forth in the moving and opposition
papers, except that to which objections have been made and sustained." (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 334.) Generally, if all the papers submitted by the
parties show there is no triable issue of material fact and the "moving party is entitled to a
judgment as a matter of law" (Code Civ. Proc., § 437c, subd. (c)), the court must grant
the motion for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 843.)
The issue Stein raises here has been consistently answered by California courts.
"A public entity is under no duty to light its streets." (Mixon v. Pacific Gas & Electric
Co. (2012) 207 Cal.App.4th 124, 133 (Mixon); see Plattner, supra, 69 Cal.App.4th at
p. 1444; Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483 (Antenor).)
Stein, however, argues "the street and median being the same color created a peculiar
condition that rendered lighting necessary to make the street safe for pedestrian travel."
We disagree.
A duty to light, "and the consequent liability for failure to do so," may arise only if
there is "some peculiar condition rendering lighting necessary in order to make the streets
safe for travel." (Antenor, supra, 174 Cal.App.3d at p. 483.) "In other words, a prior
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dangerous condition may require street lighting or other means to lessen the danger but
the absence of street lighting is itself not a dangerous condition." (Mixon, supra, 207
Cal.App.4th at p. 133.)
A "[d]angerous condition" is defined 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 which it is reasonably foreseeable
that it will be used." (Gov. Code, § 830, subd. (a).) "The existence of a dangerous
condition is ordinarily a question of fact but 'can be decided as a matter of law if
reasonable minds can come to only one conclusion.' " (Cerna v. City of Oakland (2008)
161 Cal.App.4th 1340, 1347 (Cerna).)
" '[A] claim alleging a dangerous condition may not rely on generalized
allegations [citation] but must specify in what manner the condition constituted a
dangerous condition.' [Citation.] A plaintiff's allegations, and ultimately the evidence,
must establish a physical deficiency in the property itself. [Citations.] A dangerous
condition exists when public property 'is physically damaged, deteriorated, or defective in
such a way as to foreseeably endanger those using the property itself,' or possesses
physical characteristics in its design, location, features or relationship to its surroundings
that endanger users." (Cerna, supra, 161 Cal.App.4th at pp. 1347-1348, italics omitted.)
Here, the only material fact Stein disputed in opposing the City's motion for
summary judgment was: "The lanes of travel [of Mission Boulevard] are separated by a
center median. On either side of the center median, there is a set of double yellow lines
and then yellow stripes coming from the median to the double yellow lines on an angle.
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The median itself is black with a grey cement curb surrounding it." Stein disputed this
fact by stating: "The median was the same color as the street." However, Stein's
statement does not place the material fact in dispute. He does not dispute the existence of
the double yellow lines around the median or yellow stripes coming from the median.
Nor does he claim the median was not surrounded by a grey curb. Instead, he merely
asserts the median was the same color as the street. This assertion does not contradict the
material fact offered by the City. Thus, we consider all 28 material facts undisputed for
purposes of the City's motion and treat Stein's contention as an additional material fact
offered in opposition to the motion for summary judgment. (See Code Civ. Proc., §437c,
subd. (b)(3).)
Even considering the fact that the median was the same color as the street, we still
agree with the superior court that Stein cannot establish a dangerous condition creating
liability for the City for failing to maintain lighting at the median where Stein was
injured. The median was clearly marked by yellow lines and a grey curb. Stein admitted
there was nothing wrong with the median. He also agreed that he was aware of the
median, but forgot about it the night he was injured. He did not claim he was unable to
see the median, although it could be implied that he could not do so because it was "pitch
black." "But darkness is a naturally occurring condition that the city is under no duty to
eliminate." (Plattner, supra, 69 Cal.App.4th at p. 1445.)
Stein has not offered any evidence that the median constituted a dangerous
condition that would not be apparent to pedestrians crossing Mission Boulevard with due
care. (See Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1193.) Indeed, Stein
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was injured when he attempted to cross Mission Boulevard in the dark, carrying a five-
foot long metal detector, a five-foot long scoop, and two trash bags half full of cans. In
other words, Stein failed to exercise due care in crossing Mission Boulevard. And there
was no evidence that any other pedestrian had been injured crossing Mission Boulevard
after tripping over the median or that the City was aware of any injuries from a pedestrian
tripping over the median prior to Stein's injury. The City simply is not liable under these
circumstances, and we agree with the superior court that summary judgment was
warranted. (See Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 799 ["If . . .
it can be shown that the property is safe when used with due care and that a risk of harm
is created only when foreseeable users fail to exercise due care, then such property is not
'dangerous' within the meaning of [Government Code] section 830, subdivision (a)."].)
DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the City of San Diego is not liable for a pedestrian's injuries caused by tripping over a median in the dark, as the City has no duty to provide street lighting and the median did not constitute a dangerous condition of public property.
Issues
Whether the City of San Diego had a duty to provide lighting at the location where the plaintiff was injured.
Whether the median constituted a dangerous condition of public property under Government Code section 835.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“A public entity is under no duty to light its streets.”
“But darkness is a naturally occurring condition that the city is under no duty to eliminate.”