Eaton v.
City of Vacaville
Filed 9/6/12 Eaton v.
City of Vacaville CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
HENRY EATON
et al.,
Plaintiffs and Appellants,
v.
CITY OF VACAVILLE,
Defendant and Respondent.
A131518
(Solano
County
Super. Ct.
No. FCS033815)
Plaintiff and appellant Henry Eaton
was injured in a motor vehicle accident on Peabody Road in Vacaville.
Eaton was riding northbound on a motorcycle when he collided with
Alfatoon Edalat, who had been driving southbound in an automobile and was
making an unlawful left turn across a set of double-double yellow lines denoted
by Bott’s dots. The two double lines
extend south from a concrete median and also form the left boundary of a left
turn lane that extends approximately 75 feet further south, at which point the
double lines open for left turns and there is a prominent left turn arrow
painted on the roadway. In other words,
instead of entering the left turn lane and turning left across the northbound
lanes at the point indicated by the large arrow painted on the roadway, Edalat
attempted to cut across Peabody just past the concrete median where the space between the two double
lines is the greatest. Edalat has never
disputed that he was making an illegal left turn, never expressed any confusion
about the roadway markings, and never claimed there was any obstruction of his
view down Peabody.
Rather, he claimed Eaton must have been speeding because he seemed to
come out of nowhere.
Eaton sustained significant
wife, plaintiff and appellant Anna Eaton, sued the city, alleging the accident
was caused, at least in part, by a dangerous condition of public property. The city moved for summary judgment on
several grounds, including that there was no dangerous condition of public
property at the accident site as a matter of law and the city was protected
from liability, in any event, by design immunity. The trial court granted the motion on the
ground there was no dangerous condition as a
reach any other issue. We affirm.
Factual
and Procedural Background
At about 10:00 a.m. on November 9, 2008, Eaton and Edalat were driving in opposite
directions on Peabody.
Eaton was driving northbound on a motorcycle. Edalat had been driving southbound in an
automobile and was attempting to turn left across oncoming, northbound traffic,
into a driveway for a “mall” parking lot (referred to by the parties as the
“99-cent” mall). Eaton struck the
passenger side of Edalat’s car and sustained serious injuries.
The collision occurred approximately
233 feet south of the intersection of Peabody and Marshall Road. At
this location, Peabody is a four-lane thoroughfare, with two traffic lanes heading north and
two lanes heading south. For the first
220 feet or so south of the intersection, a raised concrete median separates
the southbound and northbound lanes.
When the raised median was first installed by the city in 2001, it was
about 170 feet long. In 2006, the city
required a developer to lengthen the median by approximately 50 feet as a
condition of approving a gas station on the east side of Peabody, to physically prevent users from making
unlawful turns across the northbound lanes.
Double yellow lines denoted by
Bott’s dots take up where the raised concrete median leaves off. The space between the two double lines is
greatest at the point where they start to extend south from the raised
median. Within a relatively short
distance, the space between the two double lines narrows and they run parallel
to one another. A double-double yellow
line, regardless of how rendered—with paint or Bott’s dots—denotes a divided
highway, and it is unlawful to turn left across oncoming traffic. (See Veh. Code, § 21651.)
The double-double line extending
south of the concrete median also marks the left side of a left turn lane for
southbound traffic. This left turn lane
(making southbound Peabody three lanes wide for the length of the turn lane) commences at the end
of the concrete barrier, where there is an opening for southbound traffic to
enter the turn lane. The turn lane,
bounded on the left by the double-double line of Bott’s dots and on the right
by a single line of dots, extends south for about 75 feet, where there is an
opening in the double-double line of Bott’s dots for left hand turns and which
is also marked, at that point, by a large left hand turn arrow painted on the
roadway. This left turn lane allows
access to another driveway for the same “mall” parking lot as the driveway
Edalat attempted to enter when he cut across the double-double line.
Police Officer Andrew Talton
investigated the collision. From the
accident site, he could look southward down Peabody and see the roadway without obstruction for
three-quarters of a mile, up to a bend.
He spoke to Edalat, who admitted he could also see to the bend. Edalat stated he thought the northbound lanes
were clear, and Eaton must have been speeding because he seemed to come out of
nowhere. Officer Talton told Edalat he
had illegally crossed a double-double yellow line and cited him for the
violation. Edalat “never claimed he did
not know the area was a divided highway, and he made no denials at all that he
had crossed over it.” Edalat also never
said he had not seen the double-double line.
Nor did he complain of missing Bott’s dots or blame his illegal left
turn on the road markings or lack thereof.
On June 29, 2009, Eaton and his wife filed a complaint
against the city. They alleged the
collision was caused by roadway conditions and claimed Peabody, at the crash site, was “in a dangerous,
defective and unsafe condition” because of “inadequate striping, no
delineators, no traffic island, . . . and no left turn signs.”
The city answered and, on August
24, 2010, moved for
summary judgment or, in the alternative, summary adjudication of issues. The city mainly argued the Eatons lacked
evidence supporting a claim of dangerous condition of public property under
Government Code section 835
name="_ftnref2" title="">[2] and, even if there
was a triable issue as to the existence of a dangerous condition, as an
affirmative defense, the city was entitled to design immunity under section
830.6.
The city submitted
director of public works, who, viewing the crash site several months after the
accident,
delineation is clear” despite “some missing dots,” and decided a project to
replace missing dots was unnecessary.
Eaton, in turn, submitted the
declaration of a traffic engineer who reviewed photographs of the crash
site. The engineer opined the fact the
raised concrete median ends just short of where the “mall” driveway across the
northbound lanes begins makes “it appear[] to a driver that the city is
inviting motorists to” use that driveway.
He believed the city should have extended the median another 10 to 12
feet to physically prevent the sort of left turn Edalat made. The engineer also declared the photos showed
too many missing Bott’s dots. “Because
the Botts’ Dots are so poorly maintained, a motorist could easily conclude that
it was okay to turn” into the driveway toward which Edalat was headed. The engineer asserted the “lack of
double-double yellow lines was a substantial factor in the accident.”
Both the city and Eaton submitted
photographs of the collision site. They
show several individual Bott’s dots are missing from the yellow double-double
line. However, most of the dots are in
place, and they clearly depict the two double lines extending south from the
concrete median, as well as the left turn lane bounded by the double-double
line on the left and by a single row of dots on the right and marked with a
prominent left hand arrow painted on the roadway where dots are not present to
allow a left turn into another driveway for the “mall” parking lot.
On November 23, 2010, the trial court granted the city’s
motion. Referencing the photographs of
the crash site, it ruled “[t]hough some ‘bot dots’ [sic] may have been missing, the intended double yellow lines are
evident.” Further citing the lack of
visual obstructions at the crash site, the court, concluded, as a matter of
law, Eaton could not establish a dangerous condition of public property, even
viewing the evidence in a light most favorable to him. The court entered final judgment in favor of
the city and against the Eatons on January 12, 2011. The Eatons filed a timely
Discussion
Standard of Review
Summary judgment or summary
adjudication of issues is proper only if there is no triable issue of material
fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f).) “On appeal after a motion for summary judgment
has been granted, we review the record de novo . . . .” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 334.) “[W]e
determine with respect to each cause of action whether the defendant seeking
summary judgment has conclusively negated a necessary element of the
plaintiff’s case, or has demonstrated that under no hypothesis is there a
material issue of fact that requires the process of trial, such that the
defendant is entitled to judgment as a matter of law.” (Ibid.) We draw all reasonable inferences from the
evidence in the light most favorable to the opposing party. (Miller
v. Department of Corrections (2005) 36 Cal.4th 446, 470.)
Dangerous
Condition of Public Property
As we have
recited, Eaton pleaded only one substantive cause of action—for a dangerous
condition of public property under section 835.
“A public
entity is generally liable for injuries caused by a dangerous condition of its
property if ‘the property was in a dangerous condition at the time of the
injury, . . . the injury was proximately caused by the dangerous condition, . .
. the dangerous condition created a reasonably foreseeable risk of the kind of
injury which was incurred, and . . . either:
[¶] . . . [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 [¶] . . . [t]he public entity had actual or constructive notice
of the dangerous condition [in time to prevent the injury].’ (Gov. Code, § 835.)” (Sun v. City of Oakland (2008)
166 Cal.App.4th 1177, 1183 (Sun).)
A “ ‘
“dangerous condition,” as defined in section 830, is “a condition of property
that creates a substantial . . . risk of injury when such property or adjacent
property is used with due care” in a “reasonably foreseeable” manner. (§ 830, subd. (a).)’ [Citation.]
‘The existence of a dangerous condition is ordinarily a question of
fact; however, it can be decided as a matter of law if reasonable minds can
come to only one conclusion concerning the issue.’ [Citations.]”
(Sun, supra, 166
Cal.App.4th at p. 1183, fn. omitted.)
“ ‘This is to guarantee that cities do not become insurers against
the injuries arising from trivial defects.’ ” (Davis v. City of Pasadena (1996) 42
Cal.App.4th 701, 704.)
“A
condition is not a dangerous condition . . . if the trial or appellate court,
viewing the evidence most favorably to the plaintiff, determines as a matter of
law that the risk created by the condition was of such a minor, trivial or
insignificant nature in view of the surrounding circumstances that no
reasonable person would conclude that the condition created a substantial risk
of injury when such property or adjacent property was used with due care in a
manner in which it was reasonably foreseeable that it would be used.” (§ 830.2.)
Further, “a
condition is not a dangerous condition . . . merely because of the failure to
provide regulatory traffic control signals, stop signs, yield right-of-way
signs, or speed restriction signs, as described by the Vehicle Code, or
distinctive roadway markings as described in Section 21460 of the Vehicle
Code.” (§ 830.4.) The referenced Vehicle Code section describes
markings for, among other things, “double parallel solid yellow lines” and
“[r]aised pavement markers” simulating those lines. (Veh. Code, § 21460, subds. (a), (e).)
The
photographs of the crash site compel us, as they did the trial court, to
conclude there was no dangerous condition of public property at the site of the
collision. The few missing Bott’s dots
just south of the concrete median were an insignificant defect that did not
create a substantial risk of injury.
(§ 830.2.) As the trial
court concluded, even with the missing dots, the double-double yellow line is
“evident,” as is the left turn lane provided for entry into the “mall” parking
lot and which Edalat should have used.
Further, sight along Peabody is wholly unobstructed until the road bends
considerably south of the collision site. (Markham,
supra, 62 Cal.App.4th at
p. 979 [“Having viewed the photographs of the intersection, we have no
hesitancy in concluding as a matter of law that the crossing of Third and
Eloise is obvious, that there is nothing which would prevent the observant
motorist from becoming aware of it at a safe distance before the intersection
is entered, and that no reasonable person could find that it constituted a
dangerous condition.”].)
Although
Eaton’s traffic engineer opined the missing Botts’ dots could have confused a
driver and caused Edalat to make the unlawful and ill-fated left turn, “expert
opinions on whether a given condition constitutes a dangerous condition of
public property are not determinative.”
(Sun, supra, 166
Cal.App.4th at p. 1189.) Even on summary
judgment, “ ‘that a witness can be found to opine that . . . a condition
constitutes a significant risk and a dangerous condition does not eliminate
this court’s statutory task, pursuant to section 830.2, of independently
evaluating the circumstances.’ ” (
most of the Bott’s dots are in place, and the few missing dots do not alter the
fact the double-double line is readily apparent, as is the left turn lane
Edalat failed to use.
The Eatons claim a “combination” of
factors beyond the missing Bott’s dots rendered Peabody Road dangerous. There is no evidence, however, of any visual
obstructions or other hazards often implicated in dangerous condition
cases. (See Sun, supra, 166
Cal.App.4th at p. 1190 [“For example, appellants did not allege or produce
any specific facts describing any particular trees, shrubbery, shadows or
insufficient lighting . . . .”].)
Rather, the “combination” of factors they primarily focus on is the fact
the concrete median ends and Bott’s dots begin, and that this change in the
roadway barrier (from raised concrete median to Bott’s dots) is across from one
of the driveways to the “mall” parking lot.
They contend this change in the barrier, plus several missing Bott’s
dots, plus the driveway situated across the two northbound lanes, essentially
“invited” or “beckoned” motorists to make a left turn. The photographs simply do not support this
assertion. On the contrary, they clearly
show a set of double-double lines, plus a well-marked left turn lane allowing
left turns a short distance to the south into another driveway to the “mall”
parking lot.
While the Eatons’ expert
opined the city should have extended the concrete median further in 2006, past
not only the entrances to the gasoline station but also past the driveway to
the “mall” parking lot that Edalat had aimed for, and suggested the fact the
raised median ends invites left turns, he stopped short of saying the
transition from raised median to a double-double yellow line is unsafe. Nor did he say that configuration contributed
to the accident.
The Eatons
contend they have adequately raised a triable issue under what they call a
they place particular emphasis. To begin
with, these cases do not establish any kind of alternative theory of
liability. The Eatons pleaded a single
substantive cause of action—for dangerous condition of public property under
section 835. These cases are also
dangerous condition cases, but involve distinctly different circumstances.
In
supra, 25 Cal.3d 707, the
Supreme Court upheld a jury’s finding that the absence of a median barrier on
the heavily-trafficked Nimitz Freeway created a dangerous condition and
contributed to injuries suffered in a cross-median, head-on accident. In that case, during the preceding four years
there had been a 40 percent increase in the number of accidents along the
stretch of the freeway where the accident occurred, and during a three-year
period spanning part of that time period there had been 18 head-on accidents. (Id.
at p. 713.) In addition, the Department
of Transportation had knowingly violated its own guidelines calling for the
construction of a median barrier at the crash site. (Ibid.) In contrast, even taking into account that
Peabody has two northbound and southbound lanes, the city street is not
remotely similar to the high-speed, traffic-jammed Nimitz Freeway. There is no evidence of prior accidents at
the site of the collision.
name="_ftnref8" title="">[8] And
there is no evidence of any regulation or guideline prohibiting the city’s
combined use of a raised median and double-double line to create a legal
barrier on Peabody.
In
146-147, 156, the Supreme Court
upheld a jury verdict that a transit authority had created a dangerous condition
by maintaining a bus stop near a city’s concededly dangerous crosswalk. The court explained, the “location of public
property, by virtue of which users are subjected to hazards on adjacent
property [the city’s property], may constitute a ‘dangerous condition.’ ” (Id.
at p. 154 [noting “the necessity of proving the public entity’s ownership or control of the dangerous property”],
first italics omitted, second italics added.)
In other words, it was the transit authority’s maintenance of a bus stop
next to and accessed by a concededly dangerous crosswalk that caused the bus
stop to also become a dangerous condition.
Here, in contrast, not only is the driveway and parking lot for the
“mall” private property, but the few missing Botts’ dots in the double-double
lines were of no significant consequence and did not create a condition
remotely comparable to the admittedly dangerous crosswalk in
While the dangerous crosswalk and bus stop accessed thereby combined to
create a dangerous condition in Bonanno,
no such combination arose here. (Cf.
existence of a dangerous crosswalk”].)
involved a two-lane street bounded by a gravel area that was used as a parking
area for an adjacent city park and also used by eastbound drivers to pass on
the right cars stopped to make left turns against oncoming traffic. (Id. at
pp. 754-755.) The town “encouraged”
parking in the gravel area, and, in particular, tacitly approved of the common
practice of parking cars at an angle.
Given the danger to park users, particularly when placing items into the
rear of a vehicle because of the angled parking, from eastbound drivers passing
to the right, the court held there was a triable issue that the dual uses of
the city’s property gave rise to a dangerous condition and reversed a summary
judgment. (Id. at pp. 759-761, 774.) As
in Bonanno, and unlike here, all of
the property at issue in Cole was
public. (Cole, at p. 759-761,
774 [“all of the property involved here belonged to Town”].) Further, there was evidence of at least one
similar accident at the site (id. at
p. 780), as well as evidence that the graveled area for parking area “failed in
numerous respects to conform to governing laws and standards,” including state
law requiring “parallel parking . . . in the absence of a resolution or
ordinance expressly providing otherwise, but Town had neither adopted such an
ordinance nor taken steps to prevent or discourage angle parking” (
connection with the private driveway and parking lot Edalat was attempting to
access.
The Eatons
also urge that because the trial court failed to rule on design immunity,
reversal and remand is necessary, at the very least, on that issue. This assertion misperceives the claim of
design immunity raised in this case. As
noted, the Eatons pleaded a single substantive claim, for dangerous condition
of public property under section 835. In
its answer, the city raised design immunity under section 830.6 as its
sixteenth affirmative defense. The city
likewise raised design immunity under section 830.6 as an alternative
ground for summary judgment. Thus,
argued the city, even if there was a triable issue that there was a dangerous
condition on Peabody at the scene of the accident, the city nevertheless was
still entitled to summary judgment by virtue of the protection afforded by
section 830.6. In other words, the issue
of design immunity was not a claim made by the Eatons, but an alternative
affirmative defense raised by the city.
As the trial court recognized, there was no need to reach that defense
if it concluded there was no triable issue that there was a dangerous condition
on Peabody. (See McKray v. State of California (1977) 74 Cal.App.3d 59, 63 [no
dangerous condition, so “we need not discuss the state’s exemption under design
immunity”].) Accordingly, the trial
court did not err by not ruling on design immunity. Because we also conclude, like the trial court,
that section 830.2 applies here and there is no triable issue of a dangerous
condition, we also need not, and do not, address the city’s design immunity
defense.
Causation
Even if we
were to conclude there is a triable issue as to whether a dangerous condition
existed on Peabody Road, we would still conclude summary judgment for the city
is proper because the Eatons produced no evidence their injuries were
“proximately caused by the dangerous condition.” (§ 835.)
“To
establish causation, a plaintiff must prove that the defendant’s conduct was a
‘substantial factor’ in bringing about his or her harm. [Citations.]
Stated differently, evidence of causation ‘must rise to the level of a
reasonable probability based upon competent testimony. [Citations.]
“A possible cause only becomes ‘probable’ when, in the absence of other
reasonable causal explanations, it becomes more likely than not that the injury
was a result of its action.”
[Citation.] [A party’s] conduct
is not the cause in fact of harm “ ‘where the evidence indicates that there is
less than a probability, i.e., a 50-50 possibility or a mere chance,’ ” that
the harm would have ensued.’ ” (Bowman
v. Wyatt (2010) 186 Cal.App.4th 286, 312 (Bowman).)
“In
reviewing evidence of causation, ‘we consider both direct and circumstantial
evidence, and all reasonable inferences to be drawn from both kinds of
evidence, giving full consideration to the negative and affirmative inferences
to be drawn from all of the evidence, including that which has been produced by
the defendant.’ [Citation.] We cannot, however, draw inferences ‘from
thin air.’ [Citation.] As one court has explained, ‘Where . . . the
plaintiff seeks to prove an essential element of [his] case by circumstantial
evidence, [he] cannot recover merely by showing that the inferences [he] draws
from those circumstances are consistent with [his] theory. Instead, [he] must show that the inferences
favorable to [him] are more reasonable or probable than those against
[him].’ [Citation.]” (Bowman,
supra, 186 Cal.App.4th at p. 312; see also Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774
[“California cases support the rule that the plaintiff must establish, by
nonspeculative evidence, some actual causal link between the plaintiff’s injury
and the defendant’s failure . . . .”]; Williams
v. Wraxall (1995) 33 Cal.App.4th 120, 133 [“[e]vidence of causation
must rise to the level of a reasonable probability based upon competent
testimony”].)
In Bowman, the Court of Appeal reversed a dangerous
condition jury verdict on the ground there was no substantial evidence the
allegedly dangerous condition of public property—defective brakes on a dump
truck—caused the collision between the truck and a motorcyclist. (Bowman, supra, 186 Cal.App.4th
at pp. 310-314.) The plaintiff offered
no “direct evidence that faulty brakes caused the collision” but rather “asked
the jury to infer from the brake defects discovered after the accident that
defects existed before the accident and were the accident’s cause.” (Id. at p. 312.) While there was substantial evidence the
brakes were defective (id. at p. 310-311), there was no substantial
evidence linking the brakes with the accident (id. at pp. 313-314). Rather, witnesses testified the driver looked
to the right, saw the vehicle behind the motorcycle but did not see the
motorcyclist, and rolled slowly through the intersection without stopping. There was no testimony the driver ever made
any effort to apply his brakes. (Id. at
pp. 311-312.) “[T]here simply was
not evidence from which a reasonable jury could have concluded that defective
brakes, rather than [the truck driver’s] failure to see [the motorcyclist]
approaching the intersection, was the probable cause of the accident.” (Id.
at p. 314.)
Similarly
in City of San Diego v. Superior Court
(2006) 137 Cal.App.4th 21—an allegedly dangerous condition case involving
defective street lighting and an illegal street race gone wrong—the Court of
Appeal granted a petition for writ of mandate and directed that the city’s
motion for summary judgment be
granted. “[E]ven if we were to conclude
a defective physical condition exists for failure to install lighting, there is
no evidence the racers were influenced by the absence of street lights.” (Id. at
p. 31.) A concurring justice noted,
“[s]ince the driver was killed” and therefore could not testify, “[t]o
implicate street lighting as a proximate cause of the collision is to
speculate.” (Id. at pp. 32-33 (conc. opn. of McIntyre, J.).)
As in
dangerous condition of Peabody—the concrete median and double-double yellow
line of Bott’s dots and/or that several of the individual dots were missing—was
a proximate cause of the collision. The
fact the Eatons’ traffic engineer opined “[i]t is my belief that the lack of
double-double yellow lines was a substantial factor in the accident” does not
raise a triable issue. First, as we have
discussed, the characterization that there is a “lack” of a double-double
yellow line is simply not borne out by the photographs of the roadway; rather,
it is apparent from the photographs that there is a readily discernable
double-double yellow line of Bott’s dots, the vast majority of which are
intact. Second, the assertion that the
individual missing Bott’s dots were a substantial factor in the accident is
pure speculation. “[E]xpert opinion” on
causation “resting solely on speculation and surmise is inadequate to survive
summary judgment because it fails to establish a ‘ “reasonably probable causal
connection” ’ between the [alleged] negligence and the plaintiff’s
injury.” (Saelzler v. Advanced Group
400, supra, 25 Cal.4th at
p. 775, quoting Leslie G. v. Perry
& Associates (1996) 43 Cal.App.4th 472, 487.)
Although, as in the
from the driver making the illegal left turn, there was, as in
on causation from Officer Talton, who arrived on the scene shortly after the
accident, spoke with Edalat and inspected the scene himself. When he was cited, Edalat never disputed that
he was making an illegal left turn. He
never pointed out any missing Bott’s dots, claimed confusion, or contended he
thought a left turn was permissible.
Rather, he consistently
reiterated he thought the opposite traffic lanes were clear, and Eaton must
have been speeding because he seemed to come out of nowhere. In short, there is no evidence in the record from
which a reasonable jury could conclude that the few missing Bott’s dots,
“rather than [Edalat’s] failure to see [Eaton] approaching the intersection,
was the probable cause of the accident.”
(Bowman, supra, 186 Cal.App.4th at p.
314.)
We understand, as the Supreme Court
explained in Bonanno, that “the fact
plaintiff’s injury was immediately caused by a third party’s negligent or
illegal act” does not “render the present case novel,” as “[n]o shortage exists
of cases recognizing a dangerous condition of public property in some
characteristic of the property that exposed its users to increased danger from
third party negligence or criminality.”
(Bonanno, supra,
30 Cal.4th at p. 152.)
However, the court went to great lengths to make clear it was not
addressing the causation element of a premises liability claim, but rather the
existence of a dangerous condition. (
have addressed in this case only one element of liability under section 835,
the existence of a ‘dangerous condition’ of public property”].) As we have already discussed, the
circumstances that existed in Bonanno are distinctly different than those here, and the case does not support
the dangerous condition claim advanced by the Eatons.
The judgment is affirmed. Respondent to recover its costs on appeal.
_________________________
Banke,
J.
We concur:
_________________________
Marchiano, P. J.
_________________________
Margulies, J.
Throughout the summary judgment proceedings, the parties disputed whether
Edalat’s statements to Officer Talton were admissible and whether Talton could
testify as to what Edalat did not say.
The trial court, without explanation, issued a split ruling, allowing
Talton to report on Edalat’s claimed reasons for making the turn, where Edalat
stated he made the turn, and Edalat’s ability to see down Peabody Road, but
preventing Talton from reporting what Edalat never said. We conclude Talton’s statements, to the
extent we recount them here, were admissible.
Evidence Code section 1224 allows testimony about statements a declarant
makes if a party’s civil liability “is based in whole or in part upon the
liability, obligation, or duty of the declarant, or when the claim or right
asserted by a party to a civil action is barred or diminished by a breach of
duty by the declarant.” (Evid. Code,
§ 1224; see Dincau v. Tamayose
(1982) 131 Cal.App.3d 780, 788 [nurse could testify about father’s statement to
her in malpractice action against doctor when father’s testimony bore on the
cause of his child’s injury].) Testimony
about what was not said does not
implicate the hearsay rule. (
127 Cal.App.4th 1334, 1348-1349 [challenged testimony did not recount “a
statement”]; see also People v. Snow
(1987) 44 Cal.3d 216, 227 [silence is not hearsay].) On appeal from a summary judgment ruling, “we
must disregard any evidence to which a sound objection was made in the trial
court, but must consider any evidence to which no objection, or an unsound
objection, was made.” (
Assn. (2010) 189 Cal.App.4th 947, 957.)
Government Code unless otherwise noted.
