Araujo v. Coachella Valley Water District

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 LARISSA ARAUJO (SURVIVAL Case No.: 20-cv-01800-AJB-RBM ACTION), et al., [12] ORDER DENYING DEFENDANT Plaintiffs, 13 COUNTY OF IMPERIAL’S MOTION v. FOR SUMMARY JUDGMENT [14] COACHELLA VALLEY WATER [15] DISTRICT; THE COUNTY OF (Doc. No. 59) 16 IMPERIAL; JOSUE GONZALEZ; and DOES 1 TO 25, inclusive, [17] Defendants. [18] COACHELLA VALLEY WATER 19 DISTRICT, 20 Cross-Complainant, 21 v. [22] ANDRE DOS-SANTOS DE-SA, an 23 individual; COUNTY OF IMPERIAL, a Public Entity; and DOES 1-10, inclusive, [24] 25 Cross-Defendants. [26] 27 Presently before the Court is Defendant County of Imperial’s (the “County”) 28 motion for summary judgment. (Doc. No. 59.) This motion is suitable for determination 1 on the papers and without oral argument in accordance with Civil Local Rule 7.1.d.1. 2 Accordingly, the motion hearing scheduled for January 27, 2022, is hereby vacated. Upon 3 consideration of the motion and the parties’ arguments in support and opposition, the 4 County’s motion for summary judgment is DENIED. 5 I. BACKGROUND 6 This action arises out of a tragic accident that occurred in unincorporated Imperial 7 County. (Doc. No. 81 at 7.) On October 2, 2019, Third-Party Defendant Andre Dos8 Santos De-Sa was driving a Hyundai Elantra when he, along with Plaintiffs Larissa 9 Araujo and Andressa Dos Santos, were involved in a two-car, broadside collision with a 10 van driven by Defendant Josue Gonzalez, an employee of Defendant Coachella Valley 11 Water District. (Id.) The automobile accident resulted in the death of two decedents, 12 Larissa Araujo and Andressa Dos Santos. (Id.) 13 The accident occurred at approximately 12:30 p.m., during clear, sunny, dry 14 weather. (Doc. No. 59-1 at 5.) At the time of the collision, Defendant Gonzalez was 15 driving a Ford E350 Super Duty van southbound on English Road, while Plaintiffs were 16 heading westbound on Schrimpf Road. (Doc. No. 81 at 7.) Where these two roads 17 intersect, both English Road and Schrimpf Road are unpaved, graded dirt roads. (Id. at 8.) 18 There were no stop signs or other traffic controls to indicate an intersection was 19 approaching. (Id.) Thus, English Road and Schrimpf Road were two perpendicular roads 20 that intersected without any controls regulating cross-traffic. (Id.) At the time of the 21 collision, there were no posted speed limit signs at this intersection. (Id.) Thus, pursuant 22 to California Vehicle Code § 22349(b), the speed limit was 55 mph. (Id.) 23 Approximately 73 feet northeast of the intersection, there is a dirt berm 24 approximately five feet high. (Doc. No. 59-1 at 11; Doc. No. 81 at 8.) While Mr. De-Sa 25 was driving west on Schrimpf, the dirt berm was to his right/north, while the berm was to 26 Defendant Gonzalez’s left/east as he drove south. (Doc. No. 81 at 9.) In 2014, this berm 27 was designed and constructed by Imperial Irrigation District (“IID”) as part of its 28 Managed Marsh Complex, Phase 2. (Doc. No. 59-1 at 8.) 1 In the 5 seconds before the collision, Mr. De-Sa’s Hyundai was traveling at 56 2 mph. (Id. at 6.) From 4 to 2 seconds before the collision, the Hyundai slowed from 55 3 mph to 47 mph. (Id.) Then, in the 1.5 seconds to 1 second before the collision, the 4 Hyundai was traveling 46 mph. (Id. at 7.) In the last half-second before the collision, the 5 Hyundai slowed from 42 mph to 37 mph. (Id.) Meanwhile, Defendant Gonzalez’s Ford 6 maintained a constant speed between 59.0 and 60.9 mph and never slowed or activated its 7 brakes before the collision. (Id.) Mr. De-Sa’s Hyundai entered the intersection first and 8 was thereafter hit by Defendant Gonzalez’s Ford. (Id.) 9 The remaining claim against the County is Count I for wrongful death. On October 10 15, 2021, the County filed the instant motion for summary judgment. (Doc. No. 59.) 11 Plaintiffs opposed (Doc. No. 81), and the County replied (Doc. No. 83). This order 12 follows. 13 II. LEGAL STANDARD 14 A court may grant summary judgment when it is demonstrated that there exists no 15 genuine dispute as to any material fact, and that the moving party is entitled to judgment 16 as a matter of law. See Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144 , 17 157 (1970). The party seeking summary judgment bears the initial burden of informing a 18 court of the basis for its motion and of identifying the portions of the declarations, 19 pleadings, and discovery that demonstrate an absence of a genuine dispute of material 20 fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” if it 21 might affect the outcome of the suit under the governing law. See Anderson v. Liberty 22 Lobby, Inc., 477 U.S. 242 , 248–49 (1986). A dispute is “genuine” as to a material fact if 23 there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving 24 party. See Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 25 Where the moving party will have the burden of proof on an issue at trial, the 26 movant must affirmatively demonstrate that no reasonable trier of fact could find other 27 than for the movant. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 28 2007). Where the non-moving party will have the burden of proof on an issue at trial, the 1 movant may prevail by presenting evidence that negates an essential element of the non2 moving party’s claim or by merely pointing out that there is an absence of evidence to 3 support an essential element of the non-moving party’s claim. See Nissan Fire & Marine 4 Ins. Co. v. Fritz Cos., 210 F.3d 1099 , 1102–03 (9th Cir. 2000). If a moving party fails to 5 carry its burden of production, then “the nonmoving party has no obligation to produce 6 anything, even if the nonmoving party would have the ultimate burden of persuasion at 7 trial.” Id. If the moving party meets its initial burden, the burden then shifts to the 8 opposing party to establish that a genuine dispute as to any material fact actually exists. 9 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The 10 opposing party cannot “rest upon the mere allegations or denials of the adverse party’s 11 pleading but must instead produce evidence that sets forth specific facts showing that 12 there is a genuine issue for trial.” See Estate of Tucker, 515 F.3d 1019, 1030 (9th Cir. 13 2008) (internal quotation marks, alterations, and citation omitted). 14 The evidence of the opposing party is to be believed, and all reasonable inferences 15 that may be drawn from the facts placed before a court must be drawn in favor of the 16 opposing party. See Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065 (9th Cir. 2003). 17 However, “[b]ald assertions that genuine issues of material fact exist are insufficient.” 18 See Galen v. Cty. of Los Angeles, 477 F.3d 652 , 658 (9th Cir. 2007); see also Day v. 19 Sears Holdings Corp., 930 F. Supp. 2d 1146, 1159 (C.D. Cal. 2013) (“Conclusory, 20 speculative testimony in affidavits and moving papers is insufficient to raise genuine 21 issues of fact and defeat summary judgment.”). Further, a motion for summary judgment 22 may not be defeated by evidence that is “merely colorable, or is not significantly 23 probative . . . .” See Anderson, 477 U.S. at 249–50 (citations omitted); see also Hardage 24 v. CBS Broad. Inc., 427 F.3d 1177 , 1183 (9th Cir. 2006) (same). If the nonmoving party 25 fails to produce evidence sufficient to create a genuine dispute of material fact, the 26 moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 27 1103. 28 /// 1 III. EVIDENTIARY OBJECTIONS 2 For a motion for summary judgment, “a party does not necessarily have to produce 3 evidence in a form that would be admissible at trial . . . .” See Block v. City of Los 4 Angeles, 253 F.3d 410 , 418–19 (9th Cir. 2001). “Rule 56[(c)] requires only that evidence 5 ‘would be admissible’, not that it presently be admissible.” Burch v. Regents of Univ. of 6 Cal., 433 F. Supp. 2d 1110, 1120 (E.D. Cal. 2006). Thus, “[t]he focus is on the 7 admissibility of the evidence’s contents, not its form.” Estate of Hernandez-Rojas ex rel. 8 Hernandez v. United States, 62 F. Supp. 3d 1169, 1174 (S.D. Cal. 2014) (citing Fonseca 9 v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 2004)); Fraser v. Goodale, [10] 342 F.3d 1032, 1036 (9th Cir. 2003) (same). And while a court will consider a party’s 11 evidentiary objections to a motion for summary judgment, “[o]bjections such as lack of 12 foundation, speculation, hearsay and relevance are duplicative of the summary judgment 13 standard itself.” All Star Seed v. Nationwide Agribusiness Ins. Co., No. 12CV146 L 14 BLM, 2014 WL 1286561 , at *16–17 (S.D. Cal. Mar. 31, 2014) (citing Burch, 433 F. 15 Supp. 2d at 1119–20). 16 Plaintiffs lodge evidentiary objections to the County’s evidence submitted in 17 support of its motion for summary judgment. Each of Plaintiffs’ objections is based upon 18 lack of foundation, speculation, and hearsay. Moreover, insofar as the Court’s decision 19 does not depend on certain disputed evidence in this order, the Court need not reach those 20 remaining evidentiary objections. As such, the Court OVERRULES Plaintiffs’ 21 objections. 22 IV. DISCUSSION 23 The County moves for summary judgment on Plaintiffs’ wrongful death claim. 24 (Doc. No. 59.) Plaintiffs sue the County for wrongful death based on a “dangerous 25 condition” theory. (Doc. No. 1 ¶¶ 41–44.) Specifically, Plaintiffs allege the uncontrolled 26 intersection in which the two vehicles collided was maintained by the County and in a 27 dangerous condition. (Doc. No. 81 at 14.) 28 A public entity is liable under California Government Code § 835 if the plaintiff 1 establishes: (1) the public property was in a dangerous condition at the time of the injury; 2 (2) the injury was proximately caused by the dangerous condition; (3) the kind of injury 3 that occurred was reasonably foreseeable as a consequence of the dangerous condition; 4 and either (4)(a) the dangerous condition was created by a public employee’s negligent or 5 wrongful act within the scope of their employment, or (b) the entity had actual or 6 constructive notice of the dangerous condition under § 835.2 a sufficient time prior to the 7 injury to have taken measures to protect against the dangerous condition. Cal. Gov’t 8 Code § 835. Here, it is undisputed the alleged dangerous condition was designed and 9 constructed by IID, rather than the County. (Doc. No. 59-1 at 13.) 10 In the County’s motion, it asserts (1) the roadways were not in a dangerous 11 condition, (2) the accident was not caused by a dangerous condition, and (3) the County 12 did not have notice of the alleged dangerous condition. 13 A. Dangerous Condition 14 The County argues the Court should grant summary judgment against Plaintiffs 15 because the intersection was not in a dangerous condition as it did not pose a substantial 16 risk of injury when the County’s roadways were used with due care. (Doc. No. 59-1 17 at 10.) 18 A “dangerous condition” is defined as “a condition of property that creates a 19 substantial (as distinguished from a minor, trivial or insignificant) risk of injury when 20 such property or adjacent property is used with due care in a manner in which it is 21 reasonably foreseeable that it will be used.” Cal. Gov. Code § 830 (a). “Whether a 22 condition creates a substantial risk of harm depends on how the general public would use 23 the property exercising due care” and is determined under an objective standard. 24 Schonfeldt v. State, 61 Cal. App. 4th 1462, 1466 (1998). The California Supreme Court 25 has held that “[t]he existence of a dangerous condition is ordinarily a question of fact . . . 26 but it can be decided as a matter of law if reasonable minds can come to only one 27 conclusion.” Bonanno v. Cent. Contra Costa Transit Auth., 30 Cal. 4th 139, 148 (2003). 28 The County first asserts the berm caused—at most—only a partial obstruction of 1 the drivers’ lines of sight, and thus the intersection was not in a dangerous condition. 2 (Doc. No. 59-1 at 11.) Rather, the County asserts the two drivers were negligent in not 3 seeing the other vehicle approaching the intersection. (Id. at 12.) In support of its 4 contention, the County argues neither Defendant Gonzalez nor De-Sa testified that his 5 view of oncoming traffic was blocked by the berm. (Id. at 11–12.) “Rather, when 6 Gonzalez and De-Sa were asked to clarify whether they could not see the other vehicle or 7 they did not see the other vehicle, each of them testified that he simply did not see the 8 other vehicle.” (Id. at 12 (citing County Gonzalez Deposition (“Depo.”), Doc. No. 59-2, 9 at 138–39).) However, while “[t]he negligence of a plaintiff-user of public property . . . is 10 a defense which may be asserted by a public entity[,] it has no bearing upon the 11 determination of a ‘dangerous condition’ in the first instance.” Fredette v. City of Long 12 Beach, 187 Cal. App. 3d 122, 131 (1986); Cole v. Town of Los Gatos, 205 Cal. App. 4th 13 749, 768 (2012) (“The status of a condition as ‘dangerous’ for purposes of the statutory 14 definition does not depend on whether the plaintiff or other persons were actually 15 exercising due care but on whether the condition of the property posed a substantial risk 16 of injury to persons who were exercising due care.”) Thus, whether Defendant Gonzalez 17 or De-Sa were using due care is irrelevant to the issue of whether the intersection was in 18 a dangerous condition. 19 The County next argues the intersection was not in a dangerous condition because 20 the berm “did not completely block either driver’s view of the other vehicle, at any 21 point.” (Doc. No. 59-1 at 11.) The County further contends the berm did not cause any 22 visual obstruction in the final 100 feet of each driver’s approach to the intersection, and 23 thus the berm was irrelevant as the vehicles entered the intersection. (Id.) The County 24 offers testimony from Officer Farber, who testified that based upon his visibility analysis, 25 the berm did not completely block either driver’s view of the other vehicle at any point. 26 (Doc. No. 59-1 at 11; County Farber Depo., Doc. No. 59-2, at 21.) Additionally, Officer 27 Farber testified the berm did not cause any sightline obstruction in the final 100 feet 28 before the vehicles entered the intersection. (Doc. No. 59-1 at 11; County Farber Depo. 1 at 21.) However, Plaintiffs argue they have offered substantial evidence that the 2 intersection was in a dangerous condition at the time of the collision. (Doc. No. 81 at 16.) 3 For instance, Plaintiffs’ expert traffic engineer Mr. Reza Marshal stated the berm created 4 a visual obstruction for vehicles traveling southbound and westbound approaching the 5 intersection, as Gonzalez and De-Sa did. (Plaintiffs (“Pl.”) Marshal Declaration 6 (“Decl.”), Doc. No. 81-7, ¶ 7(a)(viii).) Mr. Marshal further states that although the 7 intersection was unobstructed by the berm for the final 150 feet before the drivers entered 8 the intersection, the subject intersection requires a sight distance of 285 feet for a speed 9 limit of 55 mph, as was the speed limit here. (Id. at ¶ 7(a)(viii)–(ix); Doc. No. 81 at 16.) 10 Plaintiffs provide further testimony from experts which show that at 55 mph, a driver 11 travels 150 feet in 1.8 seconds. (Doc. No. 81 at 19.) Thus, with only 150 feet of sight 12 distance after the berm, the drivers would have had merely 1.8 seconds to perceive, react, 13 and implement an evasive maneuver to cross-traffic. (Id.) 14 Moreover, Plaintiffs maintain that Officer Farber’s testimony regarding visibility 15 in the final 100 feet before the intersection did not pertain to whether the intersection was 16 safe, but rather to determine the speed limit under the California Vehicle Code. (Id. at 17 21.) Specifically, Officer Farber testified he looked at the final 100 feet of the approach 18 to the intersection because “if there is any obstruction in the view of drivers approaching 19 an intersection in the last hundred feet, state law would indicate the speed limit would 20 drop to 15 miles an hour.” (Pl. Farber Depo., Doc. No. 81-3, at 16.) As such, Plaintiffs 21 assert that contrary to the County’s argument that Officer Farber’s finding rendered the 22 intersection safe, Officer Farber’s study merely determined the speed limit for the area. 23 (Doc. No. 81 at 22.) 24 Based on the foregoing, the Court concludes there are triable issues of fact 25 concerning whether the intersection was in a dangerous condition. Because there are 26 material facts in dispute, summary judgment is inappropriate as to whether a dangerous 27 condition existed at the time of the collision. 28 /// 1 B. Causation 2 The County next asserts the injury was not proximately caused by a dangerous 3 condition because the roadway was used in a “sufficiently abnormal manner”—here, 4 Defendant Gonzalez driving 4 to 6 mph over the speed limit in the 5 seconds leading to 5 the collision. (Doc. No. 59-1 at 10.) Specifically, the County argues the partial sightline 6 obstruction did not cause the subject accident, but rather, that had Gonzalez driven at the 7 statutory maximum speed for the 5 seconds prior to the accident, the accident would not 8 have occurred. (Id.) In support of its contention, the County asserts the roadways were 9 not used with “due care” under Government Code § 830 at the time of the accident. (Doc. 10 No. 59-1 at 10). The County points to Fuller v. State, 51 Cal. App. 3d 926, 940 (1975), 11 which held “[a]ny property can be dangerous if used in a sufficiently abnormal manner.” 12 (Alteration in original). However, “whether a dangerous condition exists—that is, 13 whether a condition of public property ‘creates a substantial . . . risk of injury when used 14 with due care in a manner in which it is reasonably foreseeable that it will be used’ (§ 15 830(a))—is a separate question from whether ‘the injury was proximately caused by the 16 dangerous condition’ (§ 835).” Cordova v. City of Los Angeles, 61 Cal. 4th 1099 , 1106 17 (2015). Moreover, as discussed above, “[t]he status of a condition as ‘dangerous’ for 18 purposes of the statutory definition does not depend on whether the plaintiff or other 19 persons were actually exercising due care but on whether the condition of the property 20 posed a substantial risk of injury to persons who were exercising due care.” Cole, 205 21 Cal. App. 4th at 768. 22 Generally, “causation . . . is ordinarily a question of fact which cannot be resolved 23 by summary judgment. The issue of causation may be decided as a question of law only 24 if, under undisputed facts, there is no room for a reasonable difference of opinion.” 25 Nichols v. Keller, 15 Cal. App. 4th 1672, 1687 (1993); see also Lombardo v. 26 Huysentruyt, 91 Cal. App. 4th 656, 666 (2001); Workplace Techs. Rsch., Inc. v. Project 27 Mgmt. Inst., Inc., No. 18cv1927 JM (MSB), 2021 WL 4895977 , at *17 (S.D. Cal. Oct. 28 20, 2021). Section 835 requires a plaintiff to show that the public entity’s property was 1 “in a dangerous condition at the time of the injury” and that “the injury was proximately 2 caused by the dangerous condition.” Thus, Plaintiffs must show the alleged dangerous 3 condition proximately caused the fatal injuries their decedents suffered as a result of the 4 collision with Defendant Gonzalez’s vehicle. See Cordova, 61 Cal. 4th at 1106 . 5 Here, Plaintiffs have alleged that both the County and Defendant Gonzalez were 6 substantial factors in causing their harm, and that the County cannot escape liability 7 merely because Gonzalez may also have been negligent in speeding. (Doc. No. 81 at 25.) 8 Plaintiff cites Cole, which reiterates that “it is entirely possible for an injury to result 9 from multiple tortious acts or omissions, in which case all authors of the injurious 10 conduct may be liable, provided the conduct of each satisfies the test of proximate or 11 legal cause as that concept has evolved over the centuries.” Cole, 205 Cal. App. 4th at 12 769. The court further stated, “the conduct of a third party will not bar liability unless it 13 operated as a superseding or supervening cause, so as to break the chain of legal 14 causation between the defendant’s conduct and the plaintiff’s injuries.” Id. at 770. In 15 Cole, the court reversed summary judgment where a pedestrian sued a drunk driver and a 16 public entity, alleging a dangerous condition also caused her injuries. Id. at 769. The 17 court held that foreseeable actions by a third party, such as intoxicated driving, is not a 18 superseding or supervening cause as a matter of law. Id. at 771. Here, the Court does not 19 find that driving 5 mph over the maximum speed limit to be a superseding or supervening 20 cause so as to break the chain of legal causation. 21 Plaintiffs have further provided sufficient evidence that the subject intersection 22 was a proximate cause of the collision. Plaintiffs have presented the testimonies of traffic 23 engineer Mr. Marshal, accident reconstruction expert Mr. Jon Landerville, and human 24 factors expert Ms. Ilene Zackowitz, who each testified that the County’s intersection was 25 a substantial factor in causing the collision. (Doc. No. 81 at 27.) Further, each of 26 Plaintiffs’ three experts testified the intersection was in a dangerous condition even for 27 those driving at the speed limit and using due care. (Id.) For example, Mr. Landerville 28 testified that “[w]hen traveling at [the maximum allowable speed of] 55 mph, a vehicle 1 would travel 150 feet in approximately 1.85 seconds. Therefore, the unobstructed sight 2 distance [of approximately 150 feet] was found to be inadequate for successful evasive 3 maneuvering.” (Landerville Decl., Doc. No. 81-8, ¶ 17.) Further, as previously discussed, 4 traffic engineer Mr. Marshal testified that based upon the American Association of State 5 Highway and Transportation Officials’ book “A Policy on Geometric Design of Highway 6 and Streets,” the subject intersection requires a sight distance of 285 feet for a speed limit 7 of 55 mph. (Marshal Decl. ¶ 7(a)(ix).) 8 Based on the foregoing, there is a material dispute as to whether the partial 9 visibility obstruction at the intersection was a proximate cause of the collision which 10 occurred. As such, summary judgment is inappropriate here. 11 C. Notice 12 1. Actual Notice 13 Government Code § 835.2(a) provides a public entity has actual notice of a 14 dangerous condition “if it had actual knowledge of the existence of the condition and 15 knew or should have known of its dangerous character.” Actual notice requires 16 knowledge of the particular dangerous condition in question. State v. Sup. Ct. of San 17 Mateo Ctny., 263 Cal. App. 2d 396, 399 (1968). Here, the Court finds there is no triable 18 issue of material fact as to whether the County lacked actual notice of the berm. 19 The County asserts it did not have actual notice because the IID, the party which 20 designed and built the berm, never informed the County about the berm either before, 21 during, or after construction. (Doc. No. 59-1 at 13 (citing County Fiorenza Depo., Doc. 22 No. 59-2, at 190).) Additionally, the County argues an accident had not occurred at the 23 subject intersection since the construction of the berm until the collision on October 2, 24 2019. (Id. at 14 (citing County Chell Depo., Doc. No. 59-2, at 147.) Lastly, the County 25 contends no one has complained to the County that the berm was causing a sightline 26 obstruction. (Doc. No. 83 at 5.) Thus, concludes the County, it lacked actual knowledge 27 and would have had no reason to investigate the area or believe that the intersection was 28 unsafe in any way. (Doc. No. 59-1 at 14.) 1 Plaintiffs counter the County had actual notice of the berm as early as 2008. (Doc. 2 No. 81 at 28.) Specifically, Plaintiffs contend Frank Fiorenza, currently employed by the 3 IID and former deputy director of the County’s Public Works Department, testified that 4 he knew of this specific berm while working for the County in 2008. (Id.) However, as 5 noted by the County, Plaintiffs misstate the evidence. (Doc. No. 83 at 3.) Mr. Fiorenza 6 testified that the Managed Marsh Project, Phase 2, which includes the subject berm at the 7 intersection of Schrimpf and English, was built in 2014 while Mr. Fiorenza was 8 employed by IID. (Pl. Fiorenza Depo., Doc. No. 81-11, at 5.) 9 Plaintiffs point to a letter signed by Mr. Fiorenza on February 4, 2008, while he 10 was the Deputy Director of the County’s Public Works Department. (Doc. No. 81 at 28.) 11 Plaintiffs assert that in the letter, Mr. Fiorenza discussed the berm’s construction. (Id.) 12 However, again, Plaintiffs misstate the evidence. Rather, Mr. Fiorenza testified that his 13 2008 letter in response to IID’s Environmental Impact Report did not pertain to any work 14 he did regarding design and construction of the managed marsh and would not have 15 included the design of the berm used in Phase 2. (Pl. Fiorenza Depo. at 12.) Additionally, 16 the 2008 letter did not address any line-of-sight obstructions from these berms, and that 17 the points in the letter were “purely based on the cost to operate, maintain roads. Actual 18 design of that on site was not the consideration at the time[.]” (Id. at 15–16.) 19 Next, Plaintiffs assert the County had actual notice because a permit request from 20 the County may have been required prior to building the berm. (Doc. No. 81 at 29.) 21 However, Mr. Fiorenza testified that he was not aware of any permit applications or other 22 plans submitted to the County that would have shown the subject berm. (Pl. Fiorenza 23 Depo. at 13.) Additionally, the permit to which Plaintiffs point, dated September 2014, 24 was unrelated to the subject berm, though part of the Managed Marsh Phase 2 plan 25 generally. (Id.) Accordingly, the Court finds Plaintiffs have not sufficiently demonstrated 26 that the County had actual notice of the berm’s construction. 27 2. Constructive Notice 28 The County argues it also did not have constructive notice of the alleged dangerous 1 condition because the subject berm was designed and constructed by IID in 2014, only 2 five years before the accident, and no accident had occurred at the subject intersection 3 until the subject collision. (Doc. No. 59-1 at 14.) Thus, the County asserts, it “would have 4 had no reason to investigate this dirt road intersection in a remote, rural area of the 5 County.” (Id.) 6 California Government Code § 835.2 provides that constructive notice exists “only 7 if the plaintiff establishes that the condition had existed for such a period of time and was 8 of such an obvious nature that the public entity, in the exercise of due care, should have 9 discovered the condition and its dangerous character.” Cal. Gov’t Code § 835.2(b); 10 Heskel v. City of San Diego, 227 Cal. App. 4th 313, 317 (2014) (“Whether the dangerous 11 condition was obvious and whether it existed for a sufficient period of time are threshold 12 elements to establish a claim of constructive notice.”). Whether a public entity had 13 constructive notice is generally a question of fact for the jury to decide. Gallipo v. City of 14 Long Beach, 146 Cal. App. 2d 520, 527 (1957). Here, it is undisputed that the berm was 15 built in 2014, approximately five years before the subject collision. 16 As the moving party, the County fails to establish that the alleged dangerous 17 condition “was not of such an obvious [c]haracter that it could not have been discovered 18 and remedied in that period of time.” Anderson v. City of Thousand Oaks, 65 Cal. App. 19 3d 82, 91 (1976). Based on the declarations and pictures provided by Plaintiffs, the size 20 of the berm suggests it was readily apparent from the street. See Heskel, 227 Cal. App. 21 4th at 320. Thus, the intersection and berm which caused the allegedly dangerous 22 condition here was visible from a public roadway for several years. Because the physical 23 feature—the berm—which rendered the intersection unsafe was readily apparent to 24 anyone driving at intersection, a jury could reasonably infer that the County had 25 constructive knowledge of the alleged dangerous condition. See Anderson, 65 Cal. App. 26 3d at 91; see also Carson v. Facilities Dev. Co., 36 Cal. 3d 830 , 843–44 (1984). 27 Moreover, the County had blading operations for its unpaved roads, wherein the 28 County attempted to blade each unpaved road between one to three times per year. (Doc. 1 81 at 30 (citing Pl. Gay Depo., Doc. No. 81-10, at 12).) Additionally, Mr. John Gay, 2 employee of the County’s Public Works Department, estimated the County’s 3 |}employees likely bladed English Road one-to-five times per year. (Gay Depo. at 28.) 4 ||Thus, because the County’s employees periodically drove the subject roads, including 5 ||during the five years from the time the berm was built to the subject collision, it is 6 ||reasonable to conclude the County had constructive notice of the “obvious nature” of the 7 ||{berm. Lastly, the County has failed to demonstrate that a reasonable inspection of the 8 intersection would not have revealed the dangerous condition. Anderson, 65 Cal. App. 3d 9 92. As such, there is a material dispute as to whether the County had constructive 10 || notice of the dangerous condition. 11 CONCLUSION 12 Based on the foregoing, the Court DENIES the County’s motion for summary 13 ||judgment. (Doc. No. 59.) The Court further confirms all pre-trial dates and deadlines as 14 set in the Scheduling Order. [15] 16 IT IS SO ORDERED. 17 |\Dated: January 14, 2022 © er : □□ 18 Hon. Anthony J.Battaglia 19 United States District Judge