California State Association of Counties March 25,2011 1100 K Srreet Suite 101 Sacramento California 95614 """ 916.327.7500 Focsimik 916.441.5507 California Court of Appeal, First District, Division Three 350 McAllister Street San Francisco, CA 94102 Re: Simone v. City and County of San Francisco Case# Al26531 (San Francisco County Super. Ct. No. 454572) Request for Publication of Opinion Filed 3/8/11 Dear Justices, The California State Association of Counties (CSAC) and the League of California Cities (League) hereby respectfully request, pursuant to California Rules of Court, Rule 8.1120, that this court certify for publication in the Official Reports its opinion filed in the above-referenced case on March 8, 2011. CSAC and the League respectfully submit that the opinion should be certified for publication because the opinion meets the criteria for publication established by California Rules of Court, Rule 8.1105. CSAC is a non-profit corporation. The membership consists of the 58 California counties. CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsels Association of California and is overseen by the Associations Litigation Overview Committee, comprised of county counsels throughout the state. The Litigation Overview Committee monitors litigation of concern to counties statewide and has determined that this case is a matter affecting all counties. The League of California Cities is an association of 476 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians. The League is advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys from all regions of the State. The Committee monitors litigation of concern to municipalities, and identifies those cases that are of statewide or nationwide significance. The Committee has identified this case as being of such significance. California Rules of Court, Rule 8.1105(c) establishes the criteria for when a Court of Appeal should certify its opinion for publication: An opinion of a Court of Appeal or a superior court appellate division- whether it affirms or reverses a trial court order or judgment--should be certified for publication in the Official Reports if the opinion: () Establishes a new rule of law;
March 25, 2011 Page 2 of 5 (2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions; (3) Modifies, explains, or criticizes with reasons given, an existing rule of law; (4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule; (5) Addresses or creates an apparent conflict in the law; ( 6) nvolves a legal issue of continuing public interest; (7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law; (8) nvokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or (9) s accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law. This court should certify its opinion for publication because it meets at least three of the publication criteria established by Rule of Court 8.1105(c). The opinion explains an existing rule of law (criterion 3), advances a new and important clarification of statutes (criterion 4) and involves a legal issue of continuing and significant public interest (criterion 6). Explanation of the Erfurt Rule of Law The facts of this case are generally similar to lawsuits regularly filed by plaintiffs, alleging dangerous conditions of roads, against public entities since the Fourth District of the California Court of Appeal issued its opinion in Erfurt v. State of California (1983) 141 Cal.App.3d 837 (Erfort). These regularly filed lawsuits involve plaintiff motorists, bicyclists or pedestrians (in this case a pedestrian) who suffered personal injuries (often, such as in this case, very serious personal injuries) as a result of being struck by a motor vehicle driven on a public road. n these cases, the cause of the accident involved obstruction by the sun of the sight of the driver of the motor vehicle which struck the plaintiff pedestrian, bicyclist or motorist. Typically, particularly when serious injuries are involved, the motorist whose driving caused the accident has no, or insufficient, insurance to compensate the injured plaintiff, so plaintiffs include as a defendant the public entity owning and/or maintaining the road, which plaintiffs perceive as a "deep pocket," as a defendant in their lawsuit. (See Respondents Brief, p. 1.) The statutory scheme that this courts opinion clarifies is California Government Code section 830, et seq., Dangerous Conditions of Public Property. Erfurt held that the blinding
March 25,2011 Page 3 of 5 effect of the sun, when combined with other conditions of a public road, could constitute a dangerous condition within the meaning of Government Code section 830, notwithstanding Government Code section 831 s immunity for weather conditions. (Erfort, supra, 141 Cal.App.3d at pp. 845-6.) The other conditions which combined with the sun to create the dangerous condition in Erfort were that just as the driver crested a hill on the freeway and was blinded by the sun, without warning the three-lane freeway split into a "Y," with a pillar in the center directly in the drivers path. (d at pp. 841-2.) 1 The problem with Erfort, needing clarification, is that Erfurt does not provide clear guidance for litigants and trial courts as to what type of other conditions may, or may not, combine with the sun to create a dangerous condition. Erfort leaves open the possibility for plaintiffs, employing experts such as Mr. Kreuper, to file lawsuits against public entities any time an accident involving sunlight occurs on one of the entities roads, based on the argument that there was some other condition which combined with the sun to create a dangerous condition, regardless of whether the other condition is an unavoidable risk with which drivers must be expected to cope. This courts opinion, in footnote 7, provides important and necessary explanation and clarification of the Erfort rule, and of the meanings of "dangerous condition" under Government Code section 830 and "weather condition" immunity under Government Code section 831. This court held that obscured sight caused by parked vehicles and the "daily phenomenon of the sun facing westbound drivers" are "unavoidable risk[s] with which drivers [and pedestrians] must generally be expected to cope. "2 Therefore, this court held that the sun, combined with parked cars along the side of the road, obscuring sight does not create a "dangerous condition" under Government Code section 830, noting that Government Code section 831 provides that public entities are "not liable for an injury caused by the effect on the use of streets and highways of weather conditions as such [unless]... it would be apparent to, and would not be anticipated by, a person exercising due care." This court compared these circumstances to the Erfort facts this court found distinguishable: "blinding sunlight as a driver reached the crests of a hill combined with the Jack of devices to properly guide and warn the driver around an object in the middle of the road." Certification of this opinion would end 28 years of confusion created by Erfurt. This courts opinion now makes it clear that plaintiffs cannot create dangerous condition liability of public entities simply by alleging that there exists some other condition, combining with sunlight, so as to circumvent Government Code section 831 s "weather condition" immunity. Rather, as this court now holds, the fact that the sun sets in the west (and rises in the east), and 1 t is interesting to note that the plaintiffs expert in Erfurt, decided 28 years ago, was the same expert plaintiff Simone retained, Harry Kreuper, whom this court describes in its opinion as a "well-known" traffic engineer. 2 Quoting Lawson v. Safeway, nc. (2010) 191 Cai.App.4th 400,410, which involved conditions other than sunlight.
March 25, 2011 Page 4 of 5 the existence of vehicles and other objects along the side of the road which may obscure sight, are "unavoidable risks with which drivers must be expected to cope." CSAC respectfully submits that this courts holding not only provides important clarification and explanation of the statutory and case law, it involves a legal issue of continuing and significant public interest. n the 28 years since Erfort, lawsuits against public entities based on alleged dangerous road conditions created by blinding sunlight combined with virtually any other condition create a substantial drain on limited public resources. This courts opinion, affirming summary judgment, holds that these circumstances do not create a dangerous condition of public property, as a matter of Jaw. Without this opinion as precedent, plaintiffs can avoid summary judgment in these cases, and hope that a jury will enter a verdict in favor of a sympathetic, seriously injured plaintiff, despite the fact that common sense tells us that the conditions alleged are "unavoidable risks with which drivers must be expected to cope." Explanation of the S. Lake Tahoe Rule of Law n addition, this courts opinion includes an important application of the rule of law set forth in City of South Lake Tahoe v. Superior Court (Markham) (1998) 62 Cal.App.4th 971, 978 (S. Lake Tahoe), holding that drivers entering uncontrolled intersections are subject to the rules of the road applicable to such intersections, public entities carmot be charged with foreseeing reckless disobedience to traffic laws, and citizens must take responsibility for their conduct, particularly when the need to take precautions is self-evident. This courts opinion contains an important application of that S. Lake Tahoe rule of Jaw, extending the rule to crosswalk cases. This is important for the member cities and counties of CSAC and the League. Shen someone is hit in a crosswalk and a dangerous condition claim is brought against the public entity, those claims often allege that there is something dangerous about the character of or visibility of the crosswalk lines. (See, e.g. Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340; Sun v. City of Oakland (2008) 166 Cal.App.4th 1177.) n such cases, plaintiffs allege various supposed defects in the crosswalk. While the recent--and not so recent--cases discuss visibility and stopping distances in determining whether a crosswalk is dangerous, courts have not provided a clear, simply-stated rule that would prevent these claims from being alleged in the first instance. This courts decision established the rule of law clearly and concisely: the legal issue is whether you can see the intersection, not the crosswalk. As the opinion states, citing S. Lake Tahoe at p. 978, "it is not the visibility or lack of visibility of the marked crosswalk, but the existence of the intersection itself that alerts both westbound drivers and pedestrians as to their duties when using [the street] at the intersection." This courts holding rejecting appellants argument that the filing of declarations from appellants expert Kreuper precluded summary judgment is also an important explanation and clarification of the standard for granting summary judgment under California Code of Civil Procedure section 437c. This courts opinion held that notwithstanding the filing of opposing declarations, it may be proper for a trial court to grant summary judgment based on the respondents experts opinion and photographs of the intersection. Again citing S. Lake Tahoe, this court ruled that the trial court had correctly granted judgment as a matter of law based on photographs of the intersection which together the respondents experts opinion showed that "no
March 25, 2011 Page 5 of5 reasonable [trier of fact] could find that [the intersection] constituted a dangerous condition." (Citing S. Lake Tahoe, supra, 62 Cal.App.4th at p. 979.) This important explanation of the S. Lake Tahoe rules of law meets the third criterion for certification of this opinion for publication. n addition, just as public entities resources are substantially and inappropriate drained by cases involving drivers blinded by sun, perceived "deep pocket" public entities are routinely faced with lawsuits filed by seriously injured pedestrians in crosswalks struck by motorists with insufficient insurance. This courts holding explaining S. Lake Tahoe, if given precedential value, will eliminate such inappropriate, but costly, suits. Thus, this courts discussion of the S. Lake Tahoe rules of law also meets the sixth criterion for publication, since it involves an issue of continuing public interest. This courts well-reasoned opinion meets the criteria for publication. t contains important explanation and clarification of rules of law, the Government Code and the Code of Civil Procedure, and it addresses critical issues of continuing public interest. CSAC and the League therefore respectfully request that this court certify its opinion for publication in the Official Reports. Sincerely, J Nl9391S Litigation Counsel California State Association of Counties Proof of Service Attached
Proof of Service by Mail Simone v. City and County of San Francisco Case No. A26531, Mary Penney, declare: That am, and was at the time of the service of the papers herein referred to, over the age of eighteen years, and not a party to the within action; and am employed in the County of Sacramento, California, within which county the subject mailing occurred. My business address is 1100 K Street, Suite!OJ, Sacramento, California, 95814. served the within REQUEST FOR PUBLCATON by placing a copy thereof in a separate envelope for each addressee named hereafter, addressed to each such addressee respectively as follows: Proof of Service List i! Simone, Francesca : Party Plaintiff and Appellant City and County of San Francisco: Defendant and Respondent!Emmanuilov, Artur; Emmanuilov, /Anatoliv: Defendants and Respondents!. Attorney Sharon J. Arkin 333 South Grand Avenue 25th Floor Los Angeles, CA 90071 Albert G. Stoll Jr 55 Francisco St., Ste. 403 San Francisco, CA 94133 David Delbon Fox Plaza 1390 Market Street, Sixth Fir. San Francisco, CA 94102 Joseph Jonathan Minioza Ericksen Arbuthnot et al!55 Grand Ave #1050 Oakland, CA 94612 icaltrans David Gossage CalTrans/Legal Dept 595 Market Street, 17th Floor San Francisco, CA 94105
League of California Cities Patrick Whitnell League of California Cities 1400 K Street Sacramento, CA 95814. Trial Court Hon. Peter J. Busch San Francisco County Superior Court! Civic Center Courthouse 400 McAllister Street San Francisco, CA 94102 l and by placing the envelopes for collection and mailing following our ordinary business practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage prepaid. declare under penalty of peijury under the Jaws of the State of California that the foregoing is true and correct. Executed on ft"e ds;,;jf?l{, at Sacramento, California.