MILLER v. CITY OF BURBANK

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Court of Appeal, Second District, Division 1, California.

William A. MILLER et al., Plaintiffs and Appellants, v. CITY OF BURBANK, a municipal corporation, et al., Defendants and Respondents.

Civ. 38866.

Decided: June 09, 1972

Herbert H. Hiestand, Jr., Los Angeles, for appellants. John D. Maharg, County Counsel, and Philip S. Miller, Deputy County Counsel, for respondent Los Angeles County Flood Control District. Schell & Delamer, Martin A. Yester and Charles H. Carpenter, Los Angeles, for respondents Kuri and Noble Manors, Inc.

Two years before the accident which precipitated this litigation (personal injuries and wrongful death), the Miller family (plaintiffs) purchased a home on Country Club Drive in the City of Burbank (City) which street was located in a natural canyon (Sunset Canyon) and used not only as a passageway for vehicular traffic but also, when needed, as a flood control channel. Bordering the street were rubble curbs 18 inches in height. At the head, or top, of the canyon, and reached by a fire service road, defendant Los Angeles Flood Control District (District) owned and maintained a facility known as Sunset Canyon Upper Debris Basin (Upper Basin); it was built in 1929 after approval of construction plans by the Los Angeles Board of Supervisors. On November 9, 1964, during the first rainstorm of the season, water, mud and debris filled this basin to overflowing; thereafter a wall of water, mud and debris traveled down the canyon onto the 90-degree curve in the street where the Miller home was located. At that point it overran the curbs, passing through and destroying plaintiffs' home; plaintiff William Miller and his daughter (minor plaintiff) sustained serious personal injuries while effecting their escape, but Mrs. Miller, wife and mother, perished by drowning.

The action was tried to a jury. After a motion for nonsuit by defendants Kuri and Noble Manors, Inc. (Noble Manors), which constructed the home, had been granted, the jury returned a verdict in plaintiffs' favor against the City and the District. The same verdict exonerated the County of Los Angeles, also a defendant, of any liability. Thereafter the City's motions for judgment notwithstanding the verdict and for a new trial were granted; the District's motion for judgment notwithstanding the verdict was denied, but its motion for a new trial was granted on the ground of the insufficiency of the evidence to justify the verdict. A settlement having been reached with City, plaintiffs dismissed their subsequent appeal from the judgment notwithstanding the verdict in City's favor as well as the order granting that defendant a new trial; there remain for determination the instant consolidated appeals from the judgment of nonsuit in favor of Noble Manors and the order granting District a new trial.1

Although different legal principles apply to the appeal from the judgment in favor of Noble, and that involving the order favoring District, certain additional background facts are in several respects common to the entire controversy. The Miller house had been built in 1959 by Noble Manors; its original purchasers in October 1962 were Mr. and Mrs. Kaye who sold the house to the Millers. In February of 1962, prior to the sale, a flooding occurred in the canyon; following the flooding, City's director of public works (Mr. Butcher) circulated a letter to the residents of the area wherein reference was made to ‘the recent heavy rainstorm which caused large quantities of mud and debris to be washed down the canyon.’ Additionally, it was stated, this situation ‘caused a hazard to life as well as property, and it is indeed fortunate that fatalities were not incurred.’ After noting that ‘at present, there is nothing to prevent a recurrence of a similar flood should another severe storm occur,’ the letter advised its readers that City had requested District and the County of Los Angeles to assist in acceleration of a U.S. Corps of Engineers project for the construction of a debris basin below Sunset Canyon. Said basin (Lower Basin) was subsequently completed, preventing the flow of mud and debris into the residential area below plaintiffs' immediate neighborhood.

In March of 1964, a fire in the Burbank section of the Verdugo Hills substantially denuded the area upstreet from plaintiffs' home making such property more susceptible to erosion and subsidence; thereafter officials of District met with City's Mr. Butcher to discuss what action should be taken. A series of pipe and wire structures was built by City to control the flow of debris by diversion, but said structures were not designed to stop a major mud slide. Through the medium of a local newspaper, Butcher also urged hillside residents to consider obtaining sandbags as a protective device, stating that any kind of rain with the hills in their then denuded condition would cause a serious situation. On September 23, 1964, he wrote District's chief engineer as follows: ‘A recent survey of the debris basins in Burbank included a stop at the Upper Sunset Canyon Debris Basin at the upper end of Country Club Drive. It was noted that debris had partially filled the basin, and in view of this year's burnoff, it would appear that every effort should be taken to have all debris basins completely empty prior to the approaching rainy season.’

On the date of the accident, the approximate capacity of the Upper Basin was 17,000 cubic yards in contrast to that of the Lower Basin (at the foot of the canyon) with a capacity of 221,000 cubic yards; this latter basin was designed to protect the more populated portion of Burbank lying downstream from plaintiffs' neighborhood. Thus, in response to Butcher's letter of September 23, above quoted, the District stated that the Upper Basin was then only 27 per cent full; for that reason, it noted, it was economically unfeasible to clean it out completely since except for housing along Country Club Drive, the new Lower Basin afforded adequate protection. Neither basin was self-cleaning, each requiring manual cleaning out when such was necessary to provide the degree of protection each was capable of affording. In November of 1964 (the month of the accident) District's general storm operating procedure was to assign a patrol to the basins when the rain had approached a point considered dangerous; no provision was made, however, for warning property owners downstream if the basins reached a level nearing capacity. District did not have the communication ability or the personnel to assume full responsibility in that regard. According to District's chief deputy engineer, ‘Our basic policy was to work with the public agencies to the extent physically possible and keep them advised of storm conditions in general wherever they occurred.’

Cleanout operations of the Upper Basin took place in late October of 1964; according to District's employee in charge of maintaining all its debris basins, they were ‘substantially completed’ by November 8 or 9, the distance from the top of the parapet to the ground being from a few inches to 8 or 9 feet. This latter estimate was confirmed by plaintiffs' witnesses, two young boys (aged nine and six) who resided in the canyou and had walked up to the basin in the hope of feeding some deer; from the top of the dam they subsequently jumped off onto the dry mud lying beneath. District's construction foreman, in charge of the actual operation, testified that 4971 cubic yards had been removed from the Upper Basin on the day before the accident; he arrived at the basin the next morning about 6:30, and one hour later determined that the cleanout operation could not go ahead because of the rain water running into the dam. After instructing two truck drivers that they could leave, he left the Upper Basin and proceeded to the Lower Basin where he phoned the District's Saticoy yard that operations had to be supended; the witness stated that he could have used the phone at the Upper Basin but it was out of order.

Since one of the consolidated appeals involves a judgment of nonsuit, much of the above summary has been set forth in the light most favorable to appellants-plaintiffs pursuant to the rule that in each instance it be so viewed on appeal. (Leonard v. Watsonville Community Hosp., 47 Cal.2d 509, 514–515, 305 P.2d 36.) A different rule applies, of course, to plaintiffs' appeal from the order granting a new trial to District upon the stated ground of the insufficiency of the evidence; accordingly, in disposing of that appeal we bear in mind the principle that an appellate court cannot reverse such an order unless it can be said as a matter of law that there is no substantial evidence to support a contrary judgment (Yarrow v. State of California, 53 Cal.2d 427, 434, 2 Cal.Rptr. 137, 348 P.2d 687), it being the exclusive province of the trial court to judge the credibility of witnesses, to determine the probative force of testimony and to draw reasonable inferences therefrom opposed to those drawn by a jury.

We first take up the appeal that involves the liability of District. Such liability, plaintiffs assert, arises from the provisions of section 835, Government Code, and companion sections of the same code, holding a public entity liable for injury caused by the dangerous condition of its property.2 One such companion section (§ 830) defines certain terminology found in section 835, while still another (§ 835.2) explains with considerable specificity the meaning of ‘notice’ both ‘actual’ or ‘constructive’ as used in section 835. District, in turn, relied on the immunity provisions of section 830.6. Such provisions declare that ‘Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.’

In granting District's motion for a new trial, the court (in conformity with section 657, Code of Civil Procedure) specified its reasons therefor, which included the following: ‘The only basis on which the District could be held liable to the plaintiffs under the facts of this case would relate to some condition or danger in the debris basin or dam creating it; the District is immune from any liability having to do with its design; the District completely and adequately discharged any obligation it had in the maintenance of the basin and dam as demonstrated by the overwhelming preponderance of the evidence.’ It seems clear that the trial court's action was dictated by certain decisions, since disapproved, construing the immunity statute relied on by District. Thus, in Cabell v. State of California, 67 Cal.2d 159, 60 Cal.Rptr. 476, 430 P.2d 34, and Becker v. Johnston, 67 Cal.2d 163, 60 Cal.Rptr. 485, 430 P.2d 43, it was held (two justices dissenting) that the immunity granted by section 830.6 continues to shield a public entity from liability even where the actual operation of the plan or design under changed circumstances reveals that the design has created a dangerous condition of which the entity has notice. This view of the law was later expressly disapproved in Baldwin v. State of California, 6 Cal.3d 424, 99 Cal.Rptr. 145, 491 P.2d 1121, decided after the filing of District's brief in the appeal at bench. It was there held that ‘where a plan or design of a construction of, or improvement to, public property, although shown to have been reasonably approved in advance or prepared in conformity with standards previously so approved, as being safe, nevertheless in its actual operations under changed physical conditions produces a dangerous condition of public property and causes injury, the public entity does not retain statutory immunity from liability conferred on it by section 830.6.’ (Supra, p. 438, 99 Cal.Rptr. p. 154, 491 P.2d p. 1130.) Our responsibility is to decide whether the principle, above quoted, applies to the circumstances of this case.

As shown already, the approximate capacity of the Upper Basin (17,000 cubic yards) was in marked contrast to that of the Lower Basin (221,000 cubic yards), the reason being that the latter facility was designed primarily to protect the more populated portion of Burbank situated below plaintiffs' home. On the other hand, according to District's chief deputy engineer (Mr. Ransom), the Upper Basin was never designed nor intended to protect Sunset Canyon from the accumulated debris resulting from a heavy storm; it appears to have been in the nature of a check dam to reduce the volume of debris and water eventually destined for the Lower Basin and the more populated sections of Burbank which the latter served. In his testimony, Mr. Ransom traced the history of the Upper Basin when it was built in 1929, mentioning ‘The financial capabilities of the District, the time element of a serious fire and a serious flooding following that fire 1927 and 1928, and an attempt by the Flood Control District to furnish the protection feasible to the major City of Burbank.’ He admitted that there were many discussions with Burbank officials relative to other potential ways of protecting Sunset Canyon, but ‘None of them proved to be feasible or economical.’

Prior to settlement of plaintiffs' claims and the dismissal of their appeal as to City, it was argued by the latter defendant in a supplemental brief (following the decision in Baldwin) that the rationale of that decision is reasonable when limited to the facts there involved, namely, a street intersection requiring a simple remedial change; such change, prohibiting any left turn either by an appropriate traffic device or the erection of a barrier for that purpose, would have prevented repeated accidents at the location, including the one which subsequently befell plaintiff. District presumably aligns itself with City's argument that there was no showing that any prior flooding had damaged any property or endangered any residence in the vicinity of plaintiffs' home; while the 1962 flooding did damage to one house, the latter was further down the canyon from the Miller residence. More persuasive, however, is the further point that no showing was made that a feasible means existed to remedy the assertedly dangerous condition here encountered. Thus, there is no evidence that a comparatively simple device, costing $20,000 as in Baldwin, could have protected against the five-foot wall of mud and water which came down the canyon on the morning in question. The street was constructed and maintained according to a design characteristic of canyon bed roads, including 18-inch curbs. Except for warning devices or procedures (mentioned later), plaintiffs suggest no additional action which should have been taken by District; instead they simply refer to Baldwin which assertedly supplies the answer. The cited case, however, points out that under section 835.4 the public entity may avoid liability, even if a dangerous condition under section 835 is established, where the action taken to protect against the risk of injury was shown to have been reasonable; also, the reasonableness of such action (or inaction) is determined ‘by taking into consideration the time and opportunity it had to take action and by weighing the probability and gravity of potential injury to persons and property forseeably exposed to the risk of injury against the practicability and cost of protecting against the risk of such injury.’ (§ 835. 4). Citing California Law Revision Commission, Comment, the court then declared: ‘The balancing process provided by this section shields the entity from liability where it is shown that ‘it would have been too costly and impractical for the public entity to have done anything else.’' (Supra, 6 Cal.3d at p. 437, 99 Cal.Rptr. at p. 153, 491 P.2d at p. 1129.)

The design and then condition of Country Club Drive were material to plaintiffs' claims against District in view of the principle set forth in the comment by the Law Revision Commission to section 830: ‘Under the definition as it is used in subsequent sections, a public entity cannot be held liable for dangerous conditions of ‘adjacent property.’ A public entity may be held liable only for dangerous conditions of its own property. But its own property may be considered dangerous if it creates a substantial risk of injury to adjacent property or to persons on adjacent property; and its own property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury.' This principle has been applied in recent cases (Briggs v. State of California, 14 Cal.App.3d 489, 499; Bakity v. County of Riverside, 12 Cal.App.3d 24, 30–31, 90 Cal.Rptr. 541.)3 While the approximate distance from the Upper Basin to the Miller home has never been furnished, photographic evidence discloses that Country Club Drive is a winding road several hundred yards in length. We have no doubt that the installation of culverts, the addition of higher curbs and other devices aimed at preventing similar injury to persons and property would have been far ‘too costly’ for City within the meaning of the comment quoted in the paragraph immediately preceding; nor would it have been practical, even though not too costly, for City to have established a warning system to alert residents to the dangers experienced by the surviving plaintiffs here.

District, as owner of a facility almost immediately adjacent to Country Club Drive, was clearly aware of the conditions thereon occurring during the rainy season; steps could have been taken either to monitor the rising level of Upper Basin or otherwise warn residents of the dangers attendant upon the maintenance of its facility during the period in question. True, as stated in Baldwin, ‘even where corrective action is clearly indicated, extensive and costly rebuilding programs are by no means required.’ (Supra, 6 Cal.3d 424, 437, 99 Cal.Rptr. 145, 153, 491 P.2d 1121, 1129.) In the present case, the above pronouncements clearly exonerate District under the design immunity provided by section 830.6; it is quite another matter, however, whether District's duty to give proper warning, as provided by subdivision (b) of section 835, properly exculpates it from liability. No costly or extensive programs would have been attached to the simple matter of employing additional personnel to acquaint residents with the emergency conditions encountered; nevertheless, as pointed out earlier, District claimed it had neither the communication ability nor the personnel to assume full responsibility in that regard. But the instant matter need not be pursued further, perhaps resulting in mere dictum, in light of the further determination in Baldwin which is dispositive of plaintiffs' claims against District.

Baldwin declares (among other things) that despite the immunity provided by section 830.6, under the theory of inverse condemnation our State Constitution subjects all public entities in California to liability for property damage caused by public works (art. I, § 14); too, the court expressly extended this constitutional obligation to cases involving personal injury by declaring that ‘No insuperable additional burden is placed upon such an entity by extending this duty to cases of personal injury.’ (Supra, p. 438, 99 Cal.Rptr. p. 154, 491 P.2d p. 1130.) In so concluding, the court cited Albers v. County of Los Angeles, 62 Cal.2d 250, 263–264, 42 Cal.Rptr. 89, 398 P.2d 129, which construed the above article and section of the Constitution as follows: ‘[A]ny actual physical injury to . . . property proximately caused by the improvement as deliberately designed and constructed is compensable under article I, section 14, of our Constitution whether foreseeable or not.’ (Italics added.) After noting that the instant provisions, being of constitutional stature, override the statutory immunity (§ 830.6) there relied on, the court held that a public entity ‘is already under a continuing obligation to review the design of its public works in order to avoid liability imposed by article I, Section 14.’ (P. 438, 99 Cal.Rptr. 154, 491 P.2d p. 1130.) Under the above holding, district was liable to plaintiffs for all the damages sustained by them, foreseeable or not, if such entity had a continuing duty to review the design of its Upper Basin regardless of the expense incident to changes or alteration which such review would require. If Baldwin had then been the law, we have little doubt that such ‘review’ would have been had following the 1962 flood; too, there can be no question that such facility was ‘deliberately designed and constructed’ within the meaning of the such decision.

For the above reasons, the order granting District a new trial must be reversed, such order having been based upon an erroneous concept of the legal principles applicable to the facts at bar. (Kiely Corp. v. Gibson, 231 Cal.App.2d 39, 47, 41 Cal.Rptr. 559.) Having persuaded us of the error thus requiring remand of the matter, plaintiffs go further by asking that we remand with instructions to the trial court to reinstate the jury's verdict and enter judgment thereon. As clearly appears, however, plaintiffs have prevailed on this appeal by reason of a decision rendered while such appeal was pending; thus, the problem is akin to that encountered by this court in Clemens v. Regents of University of California, 8 Cal.App.3d 1, 87 Cal.Rptr. 108, wherein appellant's argument was vitally affected by a case decided during the pendency of his appeal. We there pointed out that three options were open to us, and we adopted option (3). (Supra, p. 20, 87 Cal.Rptr. 108.) Also we do so here—we vacate the order granting District a new trial with instructions to the trial court to conduct a new hearing upon the motion for a new trial in light of Baldwin v. State of California, supra; the time limits referred to in Clemens should also be borne in mind. The above disposition, it seems to us, does justice to all concerned; if there are matters which indicate that Baldwin does not control (which we doubt), at that time they should be called to the trial judge's attention.

As to the appeal from judgment of nonsuit in favor of defendant Noble Manors which constructed the Miller house in 1959 on land previously purchased by it,4 recovery was predicated upon asserted negligence in the construction of the dwelling as well as under the doctrine of strict liability. As to the former theory, it was contended that defendant surveyed Sunset Canyon, studied its topography, noted the presence of the Upper Basin and inquired as to its capacity; such survey disclosed that most of the homes were elevated above street level or positioned away from the curbing of the street and utilized large curbs. Defendant Kuri testified, however, that prior to constructing the (Miller) dwelling he took into consideration all of the safety factors in connection therewith, such as the grade immediately above the home and the location and level of the dwelling, adding, ‘Had they been negative, we certainly would not have gone ahead with the construction.’ He also stated that he inspected the site of the lot to see if there had been any water erosion or damage; he found that the growth in the soil indicated that nothing had been disturbed for many years. Both Kuri and the designer of the house, Mr. O'Hanlon, testified that they checked with persons in the area as will as with city officials, on the capacity of the Upper Basin, and determined that it was adequate and that the site of the house was not subject to the hazard of flood.

To overcome this adverse testimony, plaintiffs called Neil Stiver, a graduate mechanical engineer, who had special training in the field of hydraulics and hydrology, having formerly been employed by a flood control district other than defendant District. He was familiar with the characteristics of flooding over topography and had viewed the construction of hundreds of residential developments in hillside areas. He was prepared to offer the opinion, after an inspection of the premises, that no home should be placed in the position where plaintiffs' house was built unless it was elevated off the street level or strengthened by special retaining walls, but the trial court sustained defendant's objection to the proffered testimony. The basis for the objection was that the witness was not qualified to render an opinion concerning the duty of a ‘reasonably prudent builder’ in the circumstances. In the course of the colloquy (at the bench) the trial court observed that the witness was ‘qualified to tell us how much retaining wall would support the house. I know that, but I want him qualified to tell us that the average good builder would have built such a wall.’ After further colloquy, there was this exchange between plaintiffs' counsel and the trial court: ‘[THE COURT:] What do you think is the standard of care to which I should hold Noble Manors? How would you have me word it to the jury if I gave it to the jury? MR. HIESTAND: Well, this is not a service and I don't think we, therefore must look to see whether he met the standard of the reasonable, prudent builder in that canyon under those circumstances on that date. I think we simply have a simple question of negligence. THE COURT: I agree to that, but negligence consists in violation of a duty imposed by a standard of care. You say it is not a service. I don't know what else it is when you build a house.’ Still later on, the trial court made these further observations: ‘I gave you every opportunity to attempt to qualify [Mr. Stiver], the honorable man that he is, and he confessed he didn't know what the standard was. If he doesn't, I don't. Now, we have here a builder. I won't say that he took adequate pains or didn't take adequate pains, but so far as the jury and I know, the building of the house is the type of building and type of foundation that a reasonably, prudent builder would have put up there.’

Admittedly Mr. Stiver was a soils engineer, not a building contractor familiar with construction practices in the area; plaintiffs nevertheless insist that he was qualified to render an opinion on soil conditions, assertedly a condition precedent to the actual erection of the dwelling. They cite Sabella v. Wisler, 59 Cal.2d 21, 27 Cal.Rptr. 689, 377 P.2d 889, where an award of damages against a contractor for subsidence of property (and the house thereon) was upheld upon proof that construction was undertaken without soil inspection; the trial court expressly found that defendant Wisler, an experienced home builder, took no steps to inform himself of the composition or quality of the earth upon which the house was built. It bears emphasis that the reviewing court analyzing the finding below as to the conduct of ‘reasonably prudent persons,’ added immediately thereafter the words ‘in his position.’ In the instant case, therefore, the proper test was whether a reasonably prudent builder in the position of Noble Manors would have done the job in a manner other than that here carried out; the testimony of Stiver went only to a portion of such duty or responsibility and was properly rejected. Too, ‘whether a witness is qualified to testify as an expert is within the sound discretion of the trial court, and its ruling will not be disturbed in the absence of a manifest showing of abuse of discretion. [Citations.]’ (Conolley v. Bull, 258 Cal.App.2d 183, 190, 65 Cal.Rptr. 689, 693.)

Nor did plaintiffs' remaining witnesses establish liability under the negligence theory pursuant to the test above set forth. Defendants Kuri and O'Hanlon might have done so, but plaintiffs did not pursue that approach; thus a review of their testimony neither throws light on the standard of care applicable to defendant-builder nor tends to indicate that its conduct in building the house was in any way contrary to established practices in canyon areas at the time in question (1959). Plaintiffs' remaining witness, an appraiser and right-of-way engineer employed in Burbank, testified to matters likewise failing to establish the standard of care here required; instead, he directed his testimony to the depreciation in value of the subject property due to what he considered its dangerous location on the street. Significantly, efforts to examine him on construction practices were blocked by objections, and plaintiffs' counsel conceded the point.

To recapitulate, implicit in plaintiffs' argument is the claim that the home building business in hillside areas is not sufficiently specialized to be the subject of expert testimony. We agree with the trial court's conclusion that the standard of care applicable to defendant builder in the circumstances presented was ‘something esoteric’ and not a proper subject for nonexpert minds. As in Truman v. Vargas, 275 Cal.App.2d 976, 982, 80 Cal.Rptr. 373, 376, ‘If the fact sought to be proved is one within the general knowledge of laymen, expert testimony is not required; otherwise the fact can be proved only by the opinions of experts.’

Nor did plaintiffs establish a prima facie case under the doctrine of strict liability in the absence of expert testimony that their house and lot were in a defective condition at all pertinent times. There was no competent evidence of any internal defect in either the house or pad, unlike the situation in two cases relied on by plaintiffs: Avner v. Longridge Estates, 272 Cal.App.2d 607, 77 Cal.Rptr. 633, and Kriegler v. Eichler Homes, Inc., 269 Cal.App.2d 224, 74 Cal.Rptr. 749; instead, plaintiffs contended that their house and lot were defectively constructed by reason of improper positioning of the house from the standpoint of external conditions wholly beyond the builder's control. Furthermore, both Auner, and Kriegler involved mass development of residential property; here, however, defendant builder had constructed only three houses in the vicinity of the alleged flood hazard. Rather recently it was recognized that the proper application of the strict liability doctrine in similar cases is to mass builders; it ‘does not apply to isolated transaction.’ (Price v. Shell Oil Co., 2 Cal.3d 245, 254, 85 Cal.Rptr. 178, 184, 466 P.2d 722, 728.)

As to defendants Kuri and Noble Manors, Inc., the judgment of nonsuit is affirmed; the order granting a new trial to District is vacated and remanded for further proceedings under the same conditions set forth in Clemens v. Regents of University of California, supra, 8 Cal.App.3d at pp. 21–22, 87 Cal.Rptr. 108.

FOOTNOTES

1.  Plaintiffs also appeal form order denying their motion to tax costs of defendant County of Los Angeles; absent any discussion in the briefs of plaintiffs' claims in that regard, said appeal has presumably been abandoned and is therefore dismissed.

2.  Section 835 provides: ‘Except as provided by statute, 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.’

3.  Apparently, however, it escaped the trial court's attention; thus, its order granting a new trial included the statement that ‘no dangerous condition of any District property was shown to have existed nor any relation between any property under the control of the District or any condition thereof was shown to have been a cause of injury to plaintiffs.’

4.  Defendant's president, Mr. Kuri, was also joined individually as a defendant, but the action was dismissed as to him without objection on plaintiffs' part.

LILLIE, Associate Justice.

WOOD, P. J., and CLARK, J., concur.