Ford v. City of L. A.

• Decision Date: 01 April 2020
• Docket Number: B290236
• Citation: 260 Cal.Rptr.3d 665,47 Cal.App.5th 277
• Court: California Court of Appeals Court of Appeals
• Parties: Teanna FORD, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

47 Cal.App.5th 277

260 Cal.Rptr.3d 665

Teanna FORD, Plaintiff and Appellant,

v.CITY OF LOS ANGELES, Defendant and Respondent.

B290236

Court of Appeal, Second District, Division 8, California.

Filed April 1, 2020

Balaban & Spielberger, Daniel K. Balaban, Los Angeles; Esner, Chang & Boyer, Holly N. Boyer, Shea S. Murphy, Pasadena; Law Office of Anton R.E. Richardson and Anton R.E. Richardson, Los Angeles, for Plaintiff and Appellant.

Reily & Jeffery and Janine K. Jeffery, Northridge, for Defendant and Respondent.

GRIMES, Acting P. J. Plaintiff and appellant Teanna Ford was struck by a car while crossing a street on her way to school. Plaintiff sued defendant and respondent City of Los Angeles, contending the intersection in which she was hit constituted a dangerous condition of public property within the meaning of Government Code section 835. A jury returned a defense verdict, finding the property was not in a dangerous condition at the time of the incident.

Plaintiff now appeals, arguing the trial court committed evidentiary error in relying on the privilege set forth at title 23 of the United States Code section 409 ( section 409 ) to preclude admission of a document in which defendant acknowledged the subject intersection was hazardous. Plaintiff also contends defense counsel committed numerous acts of misconduct during trial.

We conclude the trial court correctly found the document was privileged and there was no prejudicial misconduct. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of October 1, 2012, plaintiff, a sophomore at Crenshaw High School, was walking to school. While crossing West Slauson Avenue (a four-lane street) in a marked crosswalk, plaintiff was struck by a car. She suffered multiple injuries, including broken bones in her leg that required corrective surgeries. Plaintiff filed this action against defendant and the driver of the car that struck her. The driver was not a party to the trial below and is not a party to this appeal.

Plaintiff alleged the intersection of West Slauson and 11th Avenues in the city of Los Angeles constituted a dangerous condition of public property. Plaintiff further alleged defendant had installed a traffic signal at the intersection but had failed to timely complete the installation, such that it was not operable on the day plaintiff was struck.

Plaintiff obtained discovery concerning a 2007 incident at the same intersection that involved a pedestrian fatality, as well as documents related to defendant’s investigation of that incident and its subsequent application in 2008 for federal funds to improve the intersection pursuant to the Highway Safety Improvement Program (HSIP). Federal funds were provided to install the traffic signal but installation of the signal was not complete by the date of plaintiff’s injuries.

Relying on the privilege codified at section 409, defendant objected to production of its application for HSIP funds. Plaintiff moved to compel. The trial court denied plaintiff’s motion, finding the application was protected from discovery by section 409.

The case proceeded to a jury trial in February 2018. Defendant moved in limine to preclude admission of the application for HSIP funds at trial, again relying on section 409 as well as the pretrial discovery order. Defendant did not seek to preclude admission of any of the attachments to the application such as traffic collision reports. The court granted defendant’s motion, finding defendant’s application for HSIP funds was privileged under section 409 and therefore inadmissible.

Plaintiff’s counsel obtained an order from the trial court finding plaintiff unavailable to testify due to mental illness and allowing excerpts from her deposition testimony and written discovery responses to be read into the record.

From the deposition excerpts, the jury learned plaintiff had walked the same route to school many times, which included crossing the intersection at West Slauson and 11th Avenues where she was hit by the car. It was sunny and clear on the morning she was hit. Plaintiff waited at the curb for a break in traffic. She recalled looking in both directions before stepping off the curb and did not see any cars approaching. She recalled a boy on a skateboard traveling ahead of her in the crosswalk. Plaintiff was walking in the marked crosswalk and was almost to the center of Slauson when she was struck by the car. She did not see the car at any time before it hit her. She admitted having a cell phone with her but said "[i]t was put up in [her] bag" at the time.

Certain portions of plaintiff’s written discovery responses were read into the record, including her admission she believed the driver of the car that hit her had been negligent in failing to yield the right of way to her.

Evidence was presented concerning the 2007 incident at the same intersection that resulted in the death of a Crenshaw High School student. Defendant presented employee witnesses who testified about the post-accident investigation of that incident, their review of traffic flows at the intersection, the initial consideration of a "smart crosswalk," and defendant’s eventual decision to proceed with installation of a traffic signal. Defendant presented testimony concerning the receipt of HSIP funds in June 2008 for the installation of the signal, as well as the various procedural steps that had to be completed before the construction project could be undertaken. Construction of the signal was eventually completed in February 2013, and the signal became operational in March 2013, about five months after plaintiff was injured.

Both parties presented expert testimony regarding the design features of the intersection. Both experts described the intersection as a "mid-block" intersection, meaning an intersection between two signalized intersections. Plaintiff’s expert, Edward Ruzak, stated his opinions about the aspects of the intersection that made it dangerous for pedestrians like plaintiff, including its close proximity to a signalized intersection. Defendant’s expert, David Royer, stated his opinion that just because the safety of the intersection could be improved by the addition of a traffic signal did not mean the intersection was unreasonably hazardous without a signal.

The jury returned a verdict in favor of defendant, answering "No" to the first question on the special verdict form: "Was the property in a dangerous condition at the time of the incident?"

Judgment was entered in defendant’s favor on March 21, 2018. Plaintiff’s motion for new trial was denied.

This appeal followed.

DISCUSSION

1. The Evidentiary Ruling

Plaintiff contends the trial court erred in precluding admission of defendant’s application for HSIP funds. She maintains the application was not cloaked by the privilege set forth at section 409 and even if it was, defendant waived the benefit of the privilege by placing the application in issue as a defense. Plaintiff argues the ruling was prejudicial because it allowed defendant to conceal from the jury its admission that it believed the intersection was hazardous while simultaneously allowing defendant to argue it had acted reasonably by making efforts to improve the safety of the intersection. We disagree.

a. Background

Since the late 1960’s, "Congress has endeavored to improve the safety of our Nation’s highways by encouraging closer federal and state cooperation with respect to road improvement projects." ( Pierce County v. Guillen (2003) 537 U.S. 129, 133, 123 S.Ct. 720, 154 L.Ed.2d 610 ( Pierce ).) Various federal programs assist the States in identifying and evaluating roads and highways in need of safety improvements and provide funding for those projects. ( Ibid . )

One of those programs, the Hazard Elimination Program ( 23 U.S.C. § 152 ),¹ requires any state that wants federal funds for safety improvement projects to "undertake a thorough evaluation of its public roads." ( Pierce, supra , 537 U.S. at p. 133, 123 S.Ct. 720.) Shortly after the program was adopted, the States objected to the lack of confidentiality protecting the documentation of their compliance with the program. ( Ibid . ) The Secretary of Transportation reported to Congress that "the States feared that diligent efforts to identify roads eligible for aid under the [p]rogram would increase the risk of liability for accidents that took place at hazardous locations before improvements could be made." ( Id . at p. 134, 123 S.Ct. 720.) The Secretary recommended "the adoption of legislation prohibiting the disclosure of information compiled in connection with the Hazard Elimination Program." ( Ibid . )

In 1987, Congress responded by enacting section 409. ( Pierce, supra , 537 U.S. at p. 134, 123 S.Ct. 720.) The statutory language was expansive in scope, precluding the admission of specified documents into evidence "in Federal or State court or considered for other purposes in any action for damages." ( Ibid . ) Congress chose to protect a broad range of records and not just those records generated by States complying with the Hazard Elimination Program. Under the first prong of the statute, the privilege applies to safety improvement projects pursuant to sections 130 (Railway-Highway Crossings) and 144 (Highway Bridge Replacement and Rehabilitation Program) of title 23 of the United States Code, in addition to the Hazard Elimination Program at section 152. The second prong of the statute is more general and protects the same types of records if they were compiled or collected for "the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds." ( § 409 ; see also Pierce, at p. 134, 123 S.Ct. 720.)

In 1991, Congress amended section 409 to further broaden the scope of its protections. To clarify any ambiguity as to whether section 409 was intended to preclude disclosure in pretrial discovery, the privilege was made expressly applicable to pretrial discovery. In...