Date: 08-26-2019

Case Style:

Case Number: G056076

Judge: Goethals, J.

Court: California Court of Appeals Fourth Appellate District, Division Three on appeal from the Superior Court, County of Orange

Plaintiff's Attorney: DiMarco Araujo Montevideo, Brooke L. Bove and John A. Montevideo

Defendant's Attorney: Justin Reade Sarno and Steven J. Rothans

Description: Cynthia Huerta, Maria De Jesus Gonzalez and Andres Gonzalez are the
parents of three girls who were tragically killed on Halloween night in 2014 when they
were struck by a speeding motorist while they were crossing the street in a marked
crosswalk. The driver fled the scene. He was later arrested and pleaded guilty to felony
vehicular manslaughter.
Huerta and the Gonzalezes sued the City of Santa Ana (the City), alleging a
cause of action for damages based on a claim that the crosswalk constituted a “dangerous
condition of public property” pursuant to Government Code sections 835 and 835.2.
1
They contend the trial court erred by granting summary judgment in favor of the City,
arguing there were triable issues of fact related to whether the crosswalk qualified as “a
dangerous condition of public property” and whether the City had notice of that
dangerous condition before this accident.
While it has long been the law that, in the absence of a statute or charter
provision to the contrary, a city has no duty to light its streets, an exception to that rule
may exist if a ‘“peculiar condition”’ of the property makes lighting necessary. (Antenor
v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483 (Antenor).) Huerta and the
Gonzalezes assert that a large tree adjacent to the north end of the crosswalk, in
conjunction with a nearby street light, caused a shadow to be cast over the crosswalk
making it unreasonably dark at night. As a result, they argue their children were rendered
invisible to any approaching driver—thereby creating a “peculiar condition” that qualifies
as an exception to the Antenor rule, thus requiring additional lighting in the crosswalk.
They also argue the crosswalk constituted a “dangerous condition of public property”
because the posted speed limit in the area was too high for the nighttime conditions.

1
All further statutory references are to the Government Code, unless
otherwise indicated.
3
For reasons discussed below, we disagree with both contentions. After
scrutinizing these facts, we cannot find a “dangerous condition of public property” or any
“peculiar condition” that would trigger an obligation by the City to modify its street
lighting at the accident scene. Moreover, as the trial court observed in granting the City’s
motion for summary judgment, it is undisputed that the driver who hit the girls was
exceeding the posted speed limit, and therefore the speed limit was not a proximate cause
of these tragic deaths. We therefore must affirm the judgment.
FACTS
On Halloween night in 2014, Huerta’s daughters, Lexi Perez-Huerta and
Lexandra Perez-Huerta, and the Gonzalezes’ daughter, Andrea Gonzalez, were all struck
and killed by a car while crossing Fairhaven Avenue in a marked crosswalk. The
speeding driver who killed the girls later admitted he was criminally reckless when he
pleaded guilty to three counts of felony vehicular manslaughter involving “gross
negligence.”
1. The Intersection
Fairhaven is a two-way, four-lane street that runs east-west. The accident
occurred at the “T” intersection where Old Grand Street meets Fairhaven from the south.
The marked crosswalk bisects Fairhaven from the southeast corner of the intersection to
the northern side of Fairhaven. There is an elementary school at the northern end of the
crosswalk, where a large tree grows between the street and the school.
The posted speed limit for that section of Fairhaven is generally 45 miles
per hour, but it is reduced to 25 miles per hour when children are present. There are
several signs along the northern (westbound) side of Fairhaven, alerting approaching cars
to the existence of the upcoming crosswalk; these warnings begin approximately 630 feet
east of the crosswalk. During school hours, the crosswalk is monitored by a crossing
guard.
4
At night, the intersection is illuminated by a single street light at the
southeast corner of Fairhaven and Old Grand, near the south end of the crosswalk. The
next closest street light is on the south side of Fairhaven, approximately 230 feet west of
the intersection. In their complaint, Huerta and the Gonzalezes assert that on the night of
the accident, “the intersection was ‘pitch black’ at the subject crosswalk.”
The civil engineering expert retained by Huerta and the Gonzalezes stated
in a declaration filed with the court that the night time lighting at the intersection—as
measured two years after the accident in November 2016—was “dim.” Directly below
the one street light at the southeast corner the light level was according to the expert
significantly below what would be “expected.” The expert also stated that the north end
of the crosswalk, farthest away from the street light, was the “dimmest” part of the
crosswalk. There is a large tree on the north side of Fairhaven that overhangs the right
lane of Fairhaven (the number two westbound lane) where the crosswalk terminates in
front of the school.
2. The Accident
The three girls were all wearing black clothing on Halloween. At
approximately 6:45 p.m. that evening, they entered the crosswalk at the southern end
where the street light is located, and began to cross Fairhaven northbound toward the
school. A westbound vehicle, preparing to turn left onto Old Grand Avenue, yielded for
them in the westbound left turn lane.2
Moments after they passed in front of that stopped

2
Huerta and the Gonzalezes emphasize that the driver who had stopped at
the crosswalk for the girls was preparing to make a left turn, claiming “it would be
reasonable for a[nother] motorist [i.e., Bell] to presume the car is waiting for oncoming
traffic to pass before he turns left,” rather than yielding to pedestrians in the crosswalk.
They suggest this fact made the stopped vehicle “less suspicious than if a car had been
stopped at the crosswalk in the regular lanes of traffic.” They identify no evidence to
suggest there was oncoming traffic close enough to impede the stopped vehicle from
making a safe left turn. We note the girls had time to safely cross the eastbound lanes of
Fairhaven just moments before passing in front of the stopped vehicle in the westbound
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car, Jaquinn Ramone Bell, driving at a speed somewhere between 50 and 70 miles per
hour in the westbound number two lane, struck and killed all three girls. The accident
was captured on the adjacent school’s surveillance video.
3
There is no evidence Bell
attempted to stop before hitting the girls. Bell fled the scene, but he was apprehended
two days later following an investigation and manhunt.
Huerta and the Gonzalezes sued Bell, the City of Santa Ana, and the
Orange Unified School District. As against the City, they alleged a single cause of action
for damages based on the theory that the crosswalk qualified as a “dangerous condition of
public property” pursuant to section 835.
In August of 2017, following extensive discovery, the City moved for
summary judgment, or alternatively for summary adjudication, of the following five
issues: (1) it was entitled to design immunity pursuant to section 830.6; (2) the
intersection of Fairhaven and Old Grand Street does not constitute “a dangerous
condition of public property” as defined by sections 830 and 835; (3) there is no evidence
the City had actual or constructive notice of a dangerous condition at the intersection of
Fairhaven and Old Grand Street; (4) Bell’s criminally negligent driving, amounting to
felony vehicular manslaughter, was the proximate cause of Huerta and the Gonzalezes’
injuries; and (5) to the extent there is any dangerous condition at the intersection, it
constitutes a trivial defect pursuant to section 830.2, and is otherwise foreclosed by
sections 830.4 and 830.8.

left turn lane, which raises the inference the stopped car was yielding to them rather than
to any approaching traffic.
3
The estimate of Bell’s speed generated by the Santa Ana Police
Department, whose officers conducted videotaped test runs and compared them to the
surveillance footage of the accident, was between 65 and 70. Huerta and the Gonzalezes
disputed that speed estimate, pointing to the testimony of an eyewitness who estimated
Bell was driving “about 50 miles an hour.” Either way, it is undisputed Bell was driving
in excess of the posted speed limit at the time of the accident.
6
In granting the motion for summary judgment, the trial court focused
largely on the second and third issues raised by the City. The court found the City had
met its burden of showing there was no dangerous condition involving the crosswalk by
“provid[ing] evidence that there were no peculiar conditions of the road at this location:
The crosswalk was clearly marked, the street is level and straight, there are no sight
obstructions, the crosswalk is clearly marked in advance both by parkway signage as well
as street lettering, and the accident data showed no accidents involving pedestrians in the
eight years preceding this accident.” The court also noted the City provided authority
demonstrating “it could not be held liable for a dangerous condition based on the absence
of lighting because a city has no duty to install lighting. (Antenor v. City of Los Angeles
(1985) 174 Cal.App.3d 477, 483.)”
The court rejected the assertion that the posted speed limit on Fairhaven
was too high for night-time driving because drivers might “‘outdrive’ their headlights” at
that speed, reasoning that “[t]he posted speed limit is simply the maximum speed a driver
may drive at any time. A driver must still adhere to the basic speed law which prohibits
driving at a speed which endangers people or property. (See Veh. Code, § 22350.) A
driver who proceeds at a speed that ‘outdrives’ his or her headlights is not obeying the
basic speed law and is not using the public street in a safe and reasonable manner, even if
the posted speed limit is higher.” The court also concluded the asserted impropriety of
the posted speed limit was not the proximate cause of the accident because “[i]t is
undisputed that Bell was not driving the posted speed limit, but far above it.”
DISCUSSION
1. Standards Applicable to Summary Judgment
“A motion for summary judgment should be granted if the submitted papers
show that ‘there is no triable issue as to any material fact,’ and that the moving party is
entitled to judgment as a matter of law. [Citation.] A defendant moving for summary
7
judgment meets his burden of showing that a cause of action has no merit if he shows that
one or more elements of the cause of action cannot be established, or that there is a
complete defense. [Citation.] Once the defendant has met that burden, the burden shifts
to the plaintiff to show that a triable issue of material fact exists.” (Myers v. Trendwest
Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1409.)
“There is a genuine issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the party opposing
the motion in accordance with the applicable standard of proof. Initially, the moving
party bears a burden of production to make a prima facie showing of the nonexistence of
any genuine issue of material fact. If he carries his burden of production, he causes a
shift: the opposing party is then subjected to a burden of production of his own to make a
prima facie showing of the existence of a genuine issue of material fact.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)
“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.) “In performing our de novo
review, we must view the evidence in a light favorable to plaintiff as the losing party
[citation], liberally construing her evidentiary submission while strictly scrutinizing
defendants’ own showing, and resolving any evidentiary doubts or ambiguities in
plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
Under this de novo standard, “the trial court’s stated reasons for granting
summary judgment ‘are not binding on us because we review its ruling, not its
rationale.’” (Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th
153, 157.) We will affirm the summary judgment if correct on any of the grounds
asserted in the motion. (American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728,
747-748.)
8
2. Background Law
Generally speaking “[a] public entity is not liable for an injury, whether
such injury arises out of an act or omission of the public entity or a public employee or
any other person.” (§ 815, subd. (a).) An exception to this general rule is created by
section 835, which provides that “a public entity is liable for injury caused by a
dangerous condition of its property if the plaintiff establishes that the property was in a
dangerous condition at the time of the injury, that the injury was proximately caused by
the dangerous condition, that the dangerous condition created a reasonably foreseeable
risk of the kind of injury which was incurred, and that either: [¶] (a) 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 [¶] (b) The public entity had actual or
constructive notice of the dangerous condition under Section 835.2 a sufficient time prior
to the injury to have taken measures to protect against the dangerous condition.”
The term “dangerous condition” is defined in section 830, subdivision (a)
(section 830(a)), which states: “‘Dangerous condition’ means a condition of property that
creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury
when such property or adjacent property is used with due care in a manner in which it is
reasonably foreseeable that it will be used.”
When it comes to public roadways, “a public entity is only required to
provide roads that are safe for reasonably foreseeable careful use.” (Chowdhury v. City
of Los Angeles (1995) 38 Cal.App.4th 1187, 1196.) “[P]ublic liability lies under section
835 only when a feature of a public property has ‘increased or intensified’ the danger to
users from third party conduct.” (Bonanno v. Central Contra Costa Transit Authority
(2003) 30 Cal.4th 139, 155.)
“‘[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,
9
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 v. City of Oakland (2008) 161 Cal.App.4th 1340,
1347-1348.)
3. The Claim of Dangerous Condition
For over three decades, Antenor has been the leading case on a California
city’s obligation to light its roadways. The Antenor court determined “‘[i]n the absence
of a statutory or charter provision to the contrary, it is generally held that a municipality
is under no duty to light its streets even though it is given the power to do so, and hence,
that its failure to light them is not actionable negligence, and will not render it liable in
damages to a traveler who is injured solely by reason thereof.’” The court, however,
added that ‘“[a] duty to light, and the consequent liability for failure to do so,’” may arise
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.)
Although Huerta and the Gonzalezes suggest the authority cited in Antenor
provides an unconvincing foundation for the rule stated, they also acknowledge the rule
has been consistently cited and applied in many other cases alleging dangerous conditions
of public property (see, e.g., Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th
124 (Mixon); and Plattner v. City of Riverside (1999) (69 Cal.App.4th 1441). Until oral
argument, they did not seem to dispute application of the Antenor rule here. Instead, they
focused on the fact that Antenor creates an exception to the rule in cases where a
“peculiar condition” makes lighting necessary.
4

4
At oral argument Huerta and the Gonzalezes’ counsel at least impliedly
asked us to reconsider and disagree with Antenor and its progeny. We decline to do so as
imposing a duty on cities to light their streets implicates a host of public policy issues
10
Huerta and the Gonzalezes assert that the tree located at the north end of the
crosswalk (whose branches extended out over the number two lane of westbound
Fairhaven) created just such a “peculiar condition” that made the crosswalk especially
dangerous. Specifically, they contend the tree branches overhanging the street “cast[] a
large, dark shadow over the north end of the crosswalk, further reducing illumination of
pedestrians” in the crosswalk. In support of this allegation, they point to the declaration
of their “human factors” expert who concluded, “[a] large tree immediately north of the
crosswalk further shades the northern portion of the crosswalk from any ambient
illumination.”
While that statement may be true in the abstract—especially during
daylight hours—we cannot see how the tree at issue could have cast a material shadow on
the night of the accident. The single street light at the intersection was located at the
opposite end of the crosswalk. On a dark night, the street light could only have caused
the tree to cast its shadow away from the street toward the school. That light could not
have created a shadow over the area of impact of this accident.
The civil engineering expert hired by Huerta and the Gonzalezes declared
that “it is clear from the data that the tree had the effect of reducing the lighting levels
along the north side of Fairhaven Avenue at the north end of the crosswalk.” However,

(e.g., public safety, cost, and potential light pollution). The parties addressed none of
these issues in their briefing. Given the many competing considerations involved, we
conclude the Legislature is best suited to determine whether, and to what extent, cities
should be compelled to light their streets at night.
We believe this conclusion is supported by the rationale underlying the
often-related design immunity defense discussed in Higgins v. State of California (1997)
54 Cal.App.4th 177: “‘“Basically, this defense is predicated upon the concept of
separation of powers—that is, the judicial branch through court or jury should not review
the discretionary decisions of legislative or executive bodies, to avoid the danger of
‘impolitic interference with the freedom of decision-making by those public officials in
whom the function of making such decisions has been vested. . . .””” (Id. at p. 185.)
11
the expert does not relate that opinion to conditions on the night of the accident, when the
sole source of illumination for the intersection was the fixed street light on the opposite
corner.
5
Nor does the expert quantify the extent to which the lighting in the crosswalk
might have been reduced by the tree, as opposed to other factors such as the gradual
diminution of the street light’s impact as distance from that light source increased.
Ultimately, the facts relied upon by Huerta and the Gonzalezes and their
experts indicate that the crosswalk was “darkest at the north end . . . .” That assertion is
consistent with the uncontested fact the sole source of illumination for the intersection is
the street light located at the opposite end of the crosswalk. It does not support an
inference that the tree exacerbated the darkness factor at the point of impact. Nor is there
any evidence that tree branches physically blocked the driver’s view of the crosswalk or
any person in it. We therefore cannot find that the presence of the tree at the north end of
the crosswalk raises a question of fact related to the existence of a “peculiar condition”
that might necessitate lighting under Antenor.6
We conclude this case is virtually indistinguishable from Mixon where, as
here, a child was killed crossing a street in a marked crosswalk in the evening. Although
both a northbound car and a southbound car had already stopped for the child and his
family in the crosswalk, a second southbound vehicle drove through the crosswalk

5
There is no evidence that the intersection was illuminated by moonlight on
the night of the accident; to the contrary, Huerta and the Gonzalezes contend it was
‘“pitch black”’ that night.
6
The dissent suggests our analysis improperly resolves disputed issues of
fact that should be resolved at trial. But such disputes will justify a trial only if the issues
are material in determining potential liability. In our view, disputes about the relative
light levels at various points in the crosswalk, and their possible effect on visibility, are
not material in light of Antenor and its progeny. Thus, it is on the law, not the facts, that
we differ.
12
without stopping and killed the child before his father could pull him out of the way.
(Mixon, supra, 207 Cal.App.4th at pp. 129-130.)
The issue presented to the Mixon court was remarkably similar to the issue
now before us: “In this case, plaintiffs argue that even if the State had no duty to provide
lighting, it may be held liable because it undertook to provide lighting and did so
negligently by lighting the surrounding areas more brightly than the 3rd and R Streets
intersection.” (Mixon, supra, 207 Cal.App.4th at p. 134.) After rejecting plaintiffs’
position, the court explained its ruling: “The lighting configuration at the subject
intersection and surrounding area is not unlike many urban areas where there are
numerous light sources, public and private, and gradations of light intensity. A public
entity, which has no general duty to light its streets, cannot be held liable for failing to
provide a consistent level of lighting between one street and the next.” (Ibid.)
Huerta and the Gonzalezes argue the crosswalk constituted a “dangerous
condition of public property” because it was not lit equally at both ends, and the relative
darkness caused by the tree at the north end created a “peculiar condition” that made it
especially difficult for drivers in the number two lane to see a northbound pedestrian. We
cannot agree. The physical layout of the intersection here, considering the relative
positions of the street light, the crosswalk, and the involved tree, does not support either
the “dangerous condition” or the “peculiar condition” argument.
Finally, Huerta and the Gonzalezes suggest the trial court also erred by
rejecting their assertion that the 45-mile per hour posted speed limit created a dangerous
condition at the crosswalk at night because a driver at that speed would “‘outdrive’ their
headlights” and be unable to see pedestrians in the crosswalk in time to stop. In rejecting
that assertion, the trial court relied upon the “basic speed law” found in Vehicle Code
section 22350, which states that “No person shall drive a vehicle upon a highway at a
speed greater than is reasonable or prudent having due regard for weather, visibility, the
traffic on, and the surface and width of, the highway, and in no event at a speed which
13
endangers the safety of persons or property.” The court reasoned that if, as Huerta and
the Gonzalezes suggest, a driver going 45 miles per hour would not be able to see
whether there were pedestrians in the crosswalk (which he knew he was approaching due
to signage) in time to stop, he was obligated to slow down.
We agree. The basic speed law does not automatically permit a driver to
drive at the posted speed limit. If the conditions—including visibility or lack thereof—
are such that driving at the posted speed limit prevents drivers from seeing pedestrians in
a crosswalk in time to avoid hitting them, they must slow down.
It is for that reason, as well as the fact that Bell was indisputably exceeding
the posted speed limit when he hit and killed these three little girls, that we concur with
the trial court’s determination that the 45-mile per hour posted speed limit was not a
proximate cause of the accident.

Outcome: The judgment is affirmed. The City is to recover its costs on appeal.

Plaintiff's Experts:

Defendant's Experts:

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