Jaime v. State of California, DOT CA2/6 ( 2015 )

Filed 8/24/15 Jaime v. State of California, DOT CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
FRANCISCO JAIME, et al., 2d Civil No. B256108
(Super. Ct. Nos. 1375334, 1378252)
Plaintiffs and Appellants, (Santa Barbara County)
v.
STATE OF CALIFORNIA,
DEPARTMENT OF TRANSPORTATION
Defendant and Respondent.
Francisco Jaime (Jaime) and Norma Viveros, appellants, are the parents of Jennifer
Jaime (Jennifer). Jennifer was killed after a collision between the car in which she was a
passenger and a wrong-way driver. Appellants filed wrongful death actions against
respondent State of California, Department of Transportation. They purport to appeal from
the trial court's order granting respondent's pretrial "motion for judgment on the special
defense of design immunity." We consider the motion to be the functional equivalent of a
motion for summary judgment. The order granting the motion is nonappealable. However,
we construe the order as incorporating an appealable judgment. We affirm.
Factual and Procedural Background
In April 2010 at approximately 3:40 a.m., Jaime was driving his 1992 Mercedes
northbound in the number one lane on U.S. Route 101. His vehicle was north of Clark
Avenue in Santa Barbara County. At this location, northbound U.S. Route 101 consisted of
two 12-foot lanes. They were separated from the two southbound lanes by a 76-foot wide
unimproved median.
Jennifer, who was 10 years old, was in the front passenger seat. Jaime told the police
that "Jennifer was sleeping in the passenger seat with the seat reclined" and was wearing a
seat belt. But an officer who investigated the accident concluded that she was not wearing a
seat belt because "[t]he right front seat belt [of the Mercedes] was fully retracted and
showed no signs of loading."
Jaime saw "headlights coming directly at him at a high rate of speed." The
headlights were from a 1995 Honda Accord that was going southbound in the northbound
number one lane. The wrong-way driver was Antonio Betancourt.
The left side of the Honda struck the left front of the Mercedes. The Traffic
Collision Report states: "Following this impact, [the Mercedes] . . . left the roadway and
entered the dirt/shrub median. It slid sideways and rotated in a counterclockwise motion.
[The Mercedes] continued across the median where the right side tires dug into the soft dirt
causing it to overturn . . . ." The Mercedes landed on its roof in the southbound number two
lane and right shoulder. Jennifer was ejected from the vehicle into the middle of the
southbound lanes. A passenger vehicle traveling southbound drove over her without
stopping.
Jaime and Jennifer's mother, Norma Viveros, filed separate wrongful death actions
that were consolidated. Each of appellants' complaints consisted of two causes of action:
dangerous condition of public property against respondent (Gov. Code, § 835) and
negligence against Betancourt. The causes of action against respondent alleged that the
roadway was in a dangerous condition because there was no barrier between the northbound
and southbound lanes "to prevent vehicles from crossing from one side of the roadway to
the other." Jaime claimed that respondent's failure "to install a center divider, wall and/or
guardrail created a reasonably foreseeable risk that drivers of vehicles would and could lose
control of their vehicles which would result in their vehicles leaving the path of travel on the
roadway lanes, go into the center median and beyond and overturn thereby resulting in
potentially catastrophic injuries, including death."
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On February 25, 2014, respondent filed a pretrial "motion for judgment on the special
defense of design immunity" (motion for judgment). Respondent contended that it was
immune from liability because the absence of a median barrier was part of the design or plan
for the roadway. At an evidentiary hearing on the motion, each side called one expert
witness and exhibits were admitted into evidence. In granting the motion, the trial court
found that "all three elements [of design immunity] are satisfied and no changed
circumstances [exist.]"
Appellants Impliedly Agreed to the
Evidentiary Hearing on the Motion for Judgment
At oral argument before this court, appellants' counsel asserted: "We did not agree to
it [the evidentiary hearing on the motion for judgment], we did not want it, we did not
concede to it." "We opposed it in writing and we filed an opposition to it." The written
opposition is not included in the record on appeal. Counsel said that the register of actions
shows that it was filed on April 11, 2013.
In their briefs, appellants do not contend that in the trial court they opposed
conducting an evidentiary hearing on respondent's motion for judgment. Appellants have
therefore forfeited this issue. "New issues cannot generally be raised for the first time in
oral argument. [Citation.]" (New Plumbing Contractors, Inc. v. Nationwide Mutual Ins. Co.
(1992) 7 Cal.App.4th 1088, 1098.) In any event, appellants impliedly agreed to the
evidentiary hearing.
Pursuant to Evidence Code sections 452, subdivision (d), and 459, we take judicial
notice of the superior court file. On March 22, 2013, almost one year before respondent
filed its motion for judgment in February 2014, respondent filed a motion requesting that the
special defense of design immunity be bifurcated and tried first pursuant to Code of Civil
Procedure section 597.1 The statute authorizes a separate "trial" on a "defense not involving
the merits of the plaintiff's cause of action but constituting a bar or ground of abatement to
the prosecution thereof." (Ibid.) The opposition filed by appellants on April 11, 2013, was
in opposition to respondents' motion for bifurcation. Appellants asserted, "[B]ifurcation
1
All statutory references are to the Code of Civil Procedure unless otherwise stated.
3
pursuant to CCP § 597 is inappropriate as [respondent's] affirmative defense of design
immunity involves the merits of [appellants'] cause of action."
On August 8, 2013, a hearing was conducted on respondent's motion for bifurcation.
At the conclusion of the hearing, the trial court stated: ". . . I guess I'm not asking you for
your agreement necessarily on this. And if there is some objection that occurs to you later
that should be made to the process that you can't work out with counsel, you're at liberty to
bring that back. [¶] But this is the process I envision at this point; a settlement discussion
which would include this issue [design immunity] as well as if there is no resolution of the
issue by then, an understanding of how the trial would go forward, but a presentation of the
evidence necessary to show that design immunity defense can be presented, and determining
what issue of that will or will not need to go to the jury."
On September 13, 2013, the trial court signed an order entitled, "Order re Defendant's
Motion for Trial on Special Defenses." The order was prepared by appellants. The court
impliedly denied respondent's request that the special defense of design immunity be
bifurcated and tried first pursuant to section 597. The court ordered that, if the case is not
settled, it "will hold an evidentiary hearing [not a trial] on the issue of Design Immunity and
Loss of Design Immunity." "Based on [the] evidence, the Court will decide, as a matter of
law, whether [respondent] has proved the third element of Design Immunity (substantial
evidence supporting the reasonableness of the plan or design). [¶] For each matter of fact
present in the defenses of Design Immunity and Loss of Design immunity, the Court will
decide whether that element can be determined as a matter of law, or whether it must remain
as a question of fact for the jury to decide."
On February 21, 2014, four days before respondent filed its motion for judgment,
appellants filed a document entitled, "Plaintiffs' Trial Brief re Design Immunity." In the
brief's introduction, appellants stated: "Upon motion of [respondent], on February 26, 2014,
this Court will hear evidence regarding [respondent's] affirmative defense that it is entitled
to design immunity. For the reasons discussed below, [respondent] is not entitled to design
immunity or, in the alternative, there are triable issues of material fact and the jury should
determine if [respondent] is entitled to design immunity and, if yes, whether such immunity
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has been lost due to changed conditions." The trial brief expresses no opposition to
conducting the evidentiary hearing.
At the hearing on the motion for judgment, appellants did not object to going
forward with the motion. Instead, their counsel asked the court to rule as a matter of law
that respondent was not entitled to the affirmative defense of design immunity: "[W]e think
after the court hears the testimony, solely limited to the issue of design immunity . . . , the
court will find as a matter of law that they're not entitled to it because they can't meet their
burden, and rule as a matter of law that they're not entitled to design immunity."
Accordingly, we conclude that appellants impliedly agreed to the evidentiary hearing on the
motion for judgment.
Respondent's Motion for Judgment Is the Functional
Equivalent of a Motion for Summary Judgment
"The usual methods for raising a design immunity defense are motion for summary
judgment [citation]; motion for nonsuit [citation]; motion for directed verdict [citation]; or a
combination of these motions [citation]." (Mozzetti v. City of Brisbane (1977) 67
Cal.App.3d 565, 573.) At oral argument in this court, counsel for both parties agreed that
respondent's pretrial motion for judgment was not a motion for summary judgment.
Respondent did not file the required "separate statement setting forth plainly and concisely
all material facts which [it] contends are undisputed." (§ 437c, subd. (b)(1).)2 Furthermore,
the summary judgment procedure "do[es] not contemplate live testimony." (Hobbs v. Weiss
(1999) 73 Cal.App.4th 76, 81, fn. 2.)
But the motion for judgment was the functional equivalent of a motion for summary
judgment. The apparent purpose of the motion for judgment was to implement the trial
court's prior ruling that it would conduct an evidentiary hearing on the issue of design
2
The omission of the required separate statement of undisputed material facts is not
necessarily fatal to a motion for summary judgment. The summary judgment statute
provides: "The failure to comply with this requirement of a separate statement may in the
court's discretion constitute a sufficient ground for denial of the motion." (§ 437c, subd.
(b)(1), italics added.)
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immunity. The court said that at the hearing it would determine whether there were
questions of fact for the jury to decide. If no questions of fact existed, the court would
decide the design immunity issue as a matter of law. This is similar to the summary
judgment procedure. "The court must 'grant[ ]' the 'motion' [for summary judgment] 'if all
the papers submitted show' that 'there is no triable issue as to any material fact' [citation] -
that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings
and, ultimately, the law [citations] - and that the 'moving party is entitled to a judgment as a
matter of law' [citation]." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; see
also Northrop Corp. v. Stinson Sales Corp. (1984) 151 Cal.App.3d 653, 657 ["a motion for
summary judgment . . . cannot decide questions of fact"].)
Counsels' written and oral statements in the trial court indicate that they understood
the motion for judgment to be the functional equivalent of a motion for summary judgment.
In the motion for judgment respondent's counsel asserted: "Summary judgment is . . .
proper." "For purposes of summary judgment, a defendant can rely on the allegations set
forth in Plaintiff's pleadings." At the hearing on the motion before the witnesses testified,
appellants' counsel stated, "[A]t a very minimum, there are triable issues of material fact and
the issues should be resolved by the jury." Counsel was using summary judgment language.
After the witnesses had testified, appellants' counsel argued: "This is, of course, a design
immunity hearing - it is not the trial - and this is akin to a summary judgment motion. If
there are triable issues that could be decided either way, then it should go to the jury.
[¶] And it is [respondent's] burden . . . to show that there are no triable issues."
Pianka v. State (1956) 46 Cal.2d 208, supports our conclusion that the motion for
judgment is the functional equivalent of a motion for summary judgment. In Pianka the
defendant "raised the defense of sovereign immunity by means of a motion to dismiss
supported by an affidavit. The court granted the motion, and plaintiff . . . appealed from the
judgment of dismissal." (Id., at pp. 209-210.) The motion was not statutorily authorized.
Our Supreme Court referred to the motion as a "nonstatutory speaking motion[]" that has
"been superseded by the procedure governing motions for summary judgment contained in
section 437c of the Code of Civil Procedure. . . ." (Id., at p. 211, fn. omitted.) A speaking
6
motion is "a motion supported by facts outside the pleadings." (Lerner v. Ehrlich (1963)
222 Cal.App.2d 168, 171.) The Supreme Court concluded, "[A] speaking motion to dismiss
should be treated as a motion for summary judgment in order to preserve the safeguards
provided by the statute." (Pianka v. State, supra, 46 Cal.2d at p. 211.) The same reasoning
applies to respondent's nonstatutory motion for judgment, which in effect is a speaking
motion, i.e., a motion supported by facts outside the pleadings. (See Lerner v. Ehrlich,
supra, 222 Cal.App.2d at p. 172 ["In light of the Supreme Court's directions in the Pianka
case it seems clear that here the trial court was required to consider respondent Ehrlich's
motion to strike [a cross-complaint] as a motion for summary judgment and to decide it
upon the basis of the statutory requirements established by Code of Civil Procedure section
437c"]; Rangel v. Interinsurance Exch. (1992) 4 Cal.4th 1, 19, fn. 1 ["When a trial court
considers matters outside the pleadings in ruling on a motion for judgment on the pleadings,
resulting judgments are reviewed as judgments arising from motions for summary
judgment"].)
Appellants Purport to Appeal from a Nonappealable Order
In their opening brief, appellants state: "This is an appeal from a final judgment
pursuant to CCP 904.1(a)(1)." In their notice of appeal, appellants assert that they are
appealing from the order of March 20, 2014, "granting [respondent's] motion for judgment
on the special defense of design immunity; and from the judgment entered on March 13,
2014." The record does not include a judgment, and the register of actions does not show
that a judgment was entered. On March 25, 2014, respondent gave written notice to
appellants of a "judgment, decree, or order" that was allegedly entered on March 13, 2014.
The notice states that "[a] copy of the judgment, decree, or order is attached to this notice."
The only attachment is the trial court's order granting respondent's motion for judgment.
The order was signed on March 20, 2014, and entered the following day.
Thus, there is no judgment. Appellants purport to appeal from the order granting the
motion for judgment, which is a nonappealable order. "[A] summary judgment is
appealable, but an order granting summary judgment is not. [Citations.] While the court
entered an order granting summary judgment, it never entered a summary judgment. Thus,
7
there was no appealable judgment or order." (Saben, Earlix & Associates v. Fillet (2005)
134 Cal.App.4th 1024, 1030.) "[A] reviewing court is 'without jurisdiction to consider an
appeal from a nonappealable order, and has the duty to dismiss such an appeal upon its own
motion. [Citations.]' [Citation.]" (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.)
Respondent did not raise the appealability issue in its brief. At oral argument
respondent's counsel conceded that there is an appealable judgment. "[W]e . . . question the
wisdom of dismissing an appeal where the judgment itself was little more than a formality,
especially when the case has been fully briefed [and respondent has conceded that there is
an appealable judgment]. . . . [I]f we were to dismiss this appeal, [appellants] would merely
go back to superior court, obtain a judgment, and appeal again. This would result only in a
complete waste of time. [¶] As a reviewing court, our task is to resolve appeals on the
merits if at all possible. Therefore, . . .'we construe the order granting [the motion for
judgment] to incorporate a judgment in the interests of justice and to avoid delay.'
[Citation.]" (Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 539, fn. omitted;
see also Lieding v. Commercial Diving Ctr. (1983) 143 Cal.App.3d 72, 74 [" '[w]hile the
order [granting a motion for summary judgment] is nonappealable and the record does not
disclose that any judgment was ever entered pursuant thereto, judicial expediency dictates
that we reach the merits of the appeal and we therefore treat the order as a rendition of
judgment"].)
Standard of Review
Since the motion for judgment is the functional equivalent of a motion for summary
judgment, we apply the summary judgment standard of review. At oral argument
respondent's counsel acknowledged that this is the correct standard of review. In their
opening brief appellants impliedly concur with respondent. Appellants state, "As with a
motion for summary judgment, this Court reviews the trial court's grant of design immunity
under a de novo standard of review." Appellants contend that we must determine whether
"triable issues of material fact are presented." They cite section 437c, the summary
judgment statute.
8
" '[A] defendant moving for summary judgment based upon the assertion of an
affirmative defense . . . "has the initial burden to show that undisputed facts support each
element of the affirmative defense" . . . . If the defendant does not meet this burden, the
motion must be denied.' [Citations.] [¶] ' "[T]here is no obligation on the opposing party .
. . to establish anything by affidavit unless and until the moving party has by affidavit stated
' "facts establishing every element [of the affirmative defense] necessary to sustain a
judgment in his favor . . . ." ' " ' " (Consumer Cause, Inc. v. SmileCare (2001) 91
Cal.App.4th 454, 467-468.) "[T]he burden shifts to the plaintiff to show there is one or
more triable issues of material fact regarding the defense after the defendant meets the
burden of establishing all the elements of the affirmative defense. [Citations.]" (Jessen v.
Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484.)
"[W]e independently review the record that was before the trial court when it ruled
on [respondent's] motion. [Citations.] In so doing, we view the evidence in the light most
favorable to [appellants] as the losing parties, resolving evidentiary doubts and ambiguities
in their favor. [Citation.]" (Martinez v. Combs (2010) 49 Cal.4th 35, 68.)
"We must presume the judgment is correct . . . ." (Jones v. Department of
Corrections and Rehabilitation (2007) 152 Cal.App.4th 1367, 1376.) "On review of a
summary judgment, the appellant has the burden of showing error, even if he did not bear
the burden in the trial court. [Citation.] . . . '[D]e novo review does not obligate us to cull
the record for the benefit of the appellant in order to attempt to uncover the requisite triable
issues. As with an appeal from any judgment, it is the appellant's responsibility to
affirmatively demonstrate error and, therefore, to point out the triable issues the appellant
claims are present by citation to the record and any supporting authority. In other words,
review is limited to issues which have been adequately raised and briefed.' [Citations.]"
(Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.)
Elements of Design Immunity
"A public entity is liable for injury proximately caused by a dangerous condition of
its property if the dangerous condition created a reasonably foreseeable risk of the kind of
injury sustained, and the public entity had actual or constructive notice of the condition a
9
sufficient time before the injury to have taken preventive measures. [Citations.] However,
a public entity may avoid such liability by raising the affirmative defense of design
immunity. ([Gov. Code,] § 830.6.) A public entity claiming design immunity must establish
three elements: (1) a causal relationship between the plan or design and the accident; (2)
discretionary approval of the plan or design prior to construction; and (3) substantial
evidence supporting the reasonableness of the plan or design. [Citations.]" (Cornette v.
Department of Transportation (2001) 26 Cal.4th 63, 66.) Unless a jury trial is waived, the
establishment of the first two elements "requires a case-specific factual determination that
must be left to the jury when there is conflicting evidence. [Citations.]" (Hernandez v.
Department of Transp. (2003) 114 Cal.App.4th 376, 388.) "The third element of design
immunity . . . must be tried by the court, not the jury." (Cornette v. Department of
Transportation, supra, 26 Cal.4th at p. 66.) We analyze each of the design immunity
elements.
First Element
Appellants contend that respondent failed to establish the first element of a causal
relationship between the plan or design and the traffic accident. "[T]he injury-producing
feature must have been a part of the plan approved by the governmental entity. [Citation.]
The immunity only applies to 'a design-caused' accident. [Citation.]" (Grenier v. City of
Irwindale (1997) 57 Cal.App.4th 931, 941, fn. omitted..)
The roadway was designed by plans approved in 1954, 1955, and 1959. Minor
changes were made in 1966-1967 and the 1990s. The design plans did not call for the
placement of a median barrier. Thus, the absence of a median barrier was part of the design.
But appellants claim that the injury-producing feature was not the absence of a median
barrier. Instead, it was a V-ditch in the median that was not part of any approved plan or
design.
Appellants assert: "[Their] expert witness testified unequivocally that the upward
slope of the V-ditch near the southbound roadway in the median that caused the Jaime
vehicle to flip, thereby ejecting Jennifer Jaime, was not part of any design plan for the
subject roadway. As such, the State was not entitled to design immunity." (First italics
10
added.) In other words, there was no causal relationship between the plan or design and the
accident because the V-ditch caused the Mercedes to overturn and the V-ditch was not part
of the plan or design. Appellants' counsel emphasized this point at oral argument in this
court: "[F]or them [respondent] to get design immunity, you have to say there was a V-ditch
there, we [respondent] thought about it, [and] we approved it . . . . "[I]f they can't show that
it [the V-ditch] was part of the design, they can't get design immunity."
Appellants' expert, Dale Dunlap, testified that an unpaved, rough-graded "V-ditch . . .
runs along the median . . . fairly close to the southbound inside shoulder." Dunlap used the
term "V-ditch" because it is "a triangular channel" that "resembles the shape of a V." The
purpose of the V-ditch is to promote "drainage control along the median." It "protect[s] the
southbound lanes from [flooding.]" The V-ditch is approximately 18 feet away from the
inside shoulder of the southbound roadway and 58 to 60 feet away from the inside shoulder
of the northbound roadway. Jaime was driving in the number one northbound lane when his
vehicle collided with the Honda.
In reviewing the plans for the roadway, Dunlap did not see any indication of the
existence of the V-ditch in the median. He "would expect to see the flow line of the V-ditch
in the set of plans." Dunlap opined, "[T]he V-ditch presents a nonrecoverable feature within
the median that should be shielded by [a] median barrier." A nonrecoverable feature
prevents a driver who leaves the roadway from recovering control of his vehicle.
Dunlap's testimony arguably constitutes prima facie evidence that the V-ditch was
not part of the design or plan for the roadway. But appellants do not cite any evidence in the
record supporting their assertion that the V-ditch "caused the [Mercedes] to flip, thereby
ejecting Jennifer." In granting the motion for judgment, the trial court noted: "[I]t [the V-
ditch] doesn't appear to have been the causal feature here." "I don't think it is possible to be
persuaded that [the V-ditch] represented the danger [i.e., dangerous condition] if one existed
here."
The mere existence of the V-ditch, without showing a triable issue of fact whether it
caused the Mercedes to roll over, cannot defeat respondent's claim of design immunity.
Respondent's expert, Nevin Sams, opined, "[T]he slopes are . . . not steep enough to cause a
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vehicle to overturn." According to Sams, "there is a potential for the vehicle to roll" when
the slope ratio reaches 3-to-1: a one-foot vertical drop for each three feet of horizontal
distance. (The higher the ratio, the flatter the surface. A 4-to-1 ratio is flatter than a 3-to-1
ratio.) Sams testified that the portion of the median where the accident had occurred "was a
recoverable area." He estimated that the slope ratio was no steeper than 8-to-1.
Dunlap testified: "[T]esting has shown that anything steeper than 4-to-1 is
nonrecoverable, a 4-to-1 ratio or flatter generally is [recoverable] . . . ." Based on
photographs of the median, Dunlap estimated that, after leaving the northbound roadway,
the median "probably gets up to a five or 6-to-1 slope, and then it starts to flatten out as you
get further away from the northbound lanes and closer to the southbound lanes, to where it
finally reaches the flow line of the V-ditch. And then, the grade . . . reverses, and travels at
about a 10-to-1 slope upwards towards the southbound lanes." (Italics added.) On cross-
examination, Dunlap said it was his "estimation" that the slopes "are 5-to-1 and 6-to-1 and
10-to-1." He had not seen any slope as steep as 4-to-1.
Pursuant to Dunlap's testimony, the slope ratios in the median were higher, and
therefore flatter, than the 4-to-1 ratio that "testing has shown" to be generally recoverable.
Appellants do not cite any facts in the record supporting Dunlap's opinion that the V-ditch
nevertheless was a nonrecoverable slope. "Plaintiffs cannot manufacture a triable issue of
fact through use of an expert opinion with self-serving conclusions devoid of any basis,
explanation, or reasoning. [Citation.]" (McGonnell v. Kaiser Gypsum Co. (2002) 98
Cal.App.4th 1098, 1106.)
In any event, appellants' complaints established a causal relationship between the
plan or design for the roadway and the traffic accident. "The complaint limits the issues to
be addressed at the motion for summary judgment. The rationale is clear: It is the
allegations in the complaint to which the summary judgment motion must respond.
[Citation.]" (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.) To show that
"the accident was caused by a design defect, and not some other cause," respondent "may
rely on the allegations of the complaint to establish causation. [Citation.]" (Alvis v. County
of Ventura (2009) 178 Cal.App.4th 536, 550.) A complaint's factual allegations "constitute
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judicial admissions. [Citations.]" (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217,
222, fn. 3.)
Appellants' complaints make clear that the design feature that caused the accident
was the absence of a median barrier. Appellants alleged that the absence of a median barrier
constituted a dangerous condition because there was nothing "to prevent vehicles from
crossing from one side of the roadway to the other." The complaints did not mention the V-
ditch, the slope of the median, or any other aspect of the median's topography. Jaime
alleged that respondent's failure to construct a median barrier "was violative of [its]
guidelines and standards for the placement of center dividers, walls and or/guardrails due to
the potential for head on collisions between drivers traveling in opposite directions."
(Italics added.) Jaime referred to the danger that vehicles entering the median would "lose
control and roll over." But he attributed the rollover of his vehicle to soft dirt in the median,
not to a nonrecoverable slope. Jaime alleged that his "car slid sideways and rotated in a
counterclockwise motion until the right side tires of [his] car dug into the soft dirt causing
[his] car to overturn across both lanes of southbound US-101." (Italics added.) Appellants
did not contend in their complaints, as they contend in their opening brief, that "the design
feature of the median that caused Jaime's vehicle to flip . . . was the abrupt change in slope
in the median, which was due to a 'V-ditch' in the median for drainage."
Appellants did not move to amend their complaints to allege that the V-ditch caused
Jaime's vehicle to roll over. "Upon a motion for summary judgment, amendments to the
pleadings are readily allowed. [Citation.] If plaintiff wishes to expand the issues presented,
it is incumbent on plaintiff to seek leave to amend the complaint either prior to the hearing
on the motion for summary judgment, or at the hearing itself. [Citation.]" (Laabs v. City of
Victorville, supra, 163 Cal.App.4th at p. 1258.) "To allow an issue that has not been pled to
be raised in opposition to a motion for summary judgment in the absence of an amended
pleading, allows nothing more than a moving target. For Code of Civil Procedure section
437c to have procedural viability, the parties must be acting on a known or set stage." (Id.,
at p. 1258, fn. 7.) "Thus, a 'defendant moving for summary judgment need address only the
issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or
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her opposing papers.' [Citation.]" (Id., at p. 1253.) "Having repeatedly set forth [in their
complaints] the allegation" that the accident was caused by the absence of a median barrier,
appellants are not "entitled to change course in response to a summary judgment motion and
argue" that the actual cause was a V-ditch in the median. (Castillo v. Barrera (2007) 146
Cal.App.4th 1317, 1326.)
Second Element
Government Code section 830.6 defines the second element as consisting of either of
two parts: "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 [first part] 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 [second
part] such plan or design is prepared in conformity with standards previously so approved . .
. ."
"A detailed plan, drawn up by a competent engineering firm, and approved by a city
engineer in the exercise of his or her discretionary authority, is persuasive evidence" of the
first part of the second element: prior discretionary approval. (Grenier v. City of Irwindale,
supra, 57 Cal.App.4th 931, 940.) Appellants contend that respondent did not establish the
requisite prior approval because it "failed to provide the trial court with complete copies of
the relevant plans, and the trial court permitted [respondent's] sole witness [Nevin Sams] to
testify about matters for which he knew nothing only three (3) days prior at his deposition."
Appellants continue, "This testimony should have been excluded, and the documents relied
upon by [respondent] should have been deemed unreliable." Appellants present no legal or
factual analysis explaining (1) why the plan documents provided by respondent should have
been "deemed unreliable" because they were incomplete,3 and (2) why Sams' testimony
should have been excluded because it differed from what he had said at his deposition.
Appellants have therefore forfeited these issues. (Salehi v. Surfside III Condominium
Owners' Assn. (2011) 200 Cal.App.4th 1146, 1161-1162.)
3
Nevin Sams testified that the missing pages of the 1954 plan concerned "components . . .
not in the area of the subject location."
14
Appellants argue that respondent "failed to produce certified copies [of the plan
documents] pursuant to California Evidence Code § 1530." When appellants raised this
issue below, the trial court responded, "[T]hese are plans being produced by . . . a state
agency, so that the presumption of [Evidence Code section] 1530 applies and a certified
copy would not be required." Appellants have not presented any legal argument showing
that the trial court erred. "We therefore deem any claim of error forfeited. [Citations.]"
(Mendez v. Mid-Wilshire Health Care Center. (2013) 220 Cal.App.4th 534, 547-548.)
Appellants assert that the "Date Completed" sections of the 1954 and 1957 plans
were "left blank, which raised a question of whether the project was actually completed at
that point." The blank sections also "raised doubts as to whether these plans were, in fact,
the actual final as-built plans." But Nevin Sams testified that the "Date Completed" sections
were usually not filled in "on the older projects." Moreover, discretionary approval of the
plan or design "simply means approval in advance of construction by the legislative body or
officer exercising discretionary authority." (Ramirez v. City of Redondo Beach (1987) 192
Cal.App.3d 515, 526, italics added.) The plans' omission of the date of completion of the
project does not raise a triable issue of material fact whether approval for the project was
given in advance of construction.
Appellants contend that they had "asked the Court to prohibit Mr. Sams from
offering testimony about these plans because he . . . did not know who had signed the plans
or what their titles were." Appellants argue that the "signatures relied upon by [respondent]
were, therefore, inherently unreliable."
The argument lacks merit. At the hearing on the motion for judgment, Sams testified
that he knew the names and titles of the persons who had signed the plans approved in 1954
and 1955. They were "E.J.C. Peterson, the District Engineer"; "J.C. Young, Engineer of
Design"; "G.T. McCoy, State Highway Engineer"; "Frank Durkee, . . . the Director of Public
Works"; and E. Withycomde, "the Assistant State Highway Engineer." Sams also recited
the names and titles of the officials who had signed the plans approved in 1959. Sams
opined that the signers of the plans had "the discretionary authority to preapprove the design
plans."
15
In any event, "[a] signature is presumed to be genuine and authorized if it purports to
be the signature, affixed in his official capacity, of . . . [¶] (b) [a] public employee of any
public entity in the United States." (Evid. Code, § 1453, subd. (b).) Because the signatures
purport to be signatures of public officials affixed in their official capacities, they are
presumed to be genuine and authorized. Appellants have not cited any evidence in the
record that rebuts this presumption. "Given this presumption, the signatures of the various
Caltrans engineers, affixed in their official capacity as employees of the State, furnishes
'evidence sufficient to sustain a finding' that the writings were what the State claimed them
to be. [Citation.] Thus, the plans themselves provide evidence that the Project design was
given the requisite discretionary approval prior to construction." (Alvarez v. State of
California (1999) 79 Cal.App.4th 720, 728-729, disapproved on other grounds in Cornette
v. Dept. of Transp., supra, 26 Cal.4th at p. 74 & fn. 3.)
Irrespective of whether respondent satisfied the first part (prior discretionary
approval) of the second element, it satisfied the second part, which applies "where such plan
or design is prepared in conformity with standards previously . . . approved." (Gov. Code,
§ 830.6.) Nevin Sams testified that, when the divided roadway was constructed in the
1950s, there were no state standards for median barriers. Starting in 1960, state standards
provided that median barriers were not warranted if the minimum median width was 36 feet.
From 1965 through 1989, the minimum median width varied between 45 and 50 feet. The
median width at the location of the instant traffic accident was 76 feet.
State standards for median barriers recognize that barriers have disadvantages as well
as advantages. " 'Median barriers result in a trade-off. They prevent nearly all cross-median
accidents, but usually result in an overall increase in accidents and injuries. A median
barrier is a fixed object which, when hit, can cause serious injury either by direct impact or
by deflecting vehicles back into traffic. In addition, a barrier eliminates half the recovery
area for out-of-control vehicles. Based on studies of the effectiveness of median barrier
placement, California has developed a median barrier policy. The policy reflects the fact
that as traffic volumes rise, the chance that an errant vehicle will cross the median and strike
an opposing vehicle increases. But as the median reaches a certain width, it is less likely
16
that those events will occur. With medians 46 feet or wider, regardless of traffic volume,
the benefits of preventing cross-median accidents and injuries by barrier placement are
outweighed by the disadvantages of the accidents and injuries generated by a barrier. The
only exception to this rule is at those locations where there is a demonstrable history of
excessive cross-median accidents . . . ." (Mirzada v. Department of Transportation (2003)
111 Cal.App.4th 802, 804.)
Respondent's 2008 Traffic Manual provides that, regardless of median width,
"barriers should be considered if there has been a high rate of out-of-control cross-median
accidents involving opposing vehicles. A rate based on at least three accidents in 5 years, or
.5 cross-median accidents per mile per year of any severity, or .12 fatal cross-median
accidents per mile per year involving opposing vehicles justifies analysis to determine the
advisability of a barrier." Sams testified that the roadway where the instant accident
occurred has never met the requisite "high rate of out-of-control cross-median accidents."
Sams noted that, during a 9.25-year period ending the day before the accident in April 2010,
"over 131,000,000 vehicles traveled through the subject area with just . . . one cross-median
accident."
In their reply brief, appellants observe that in 2006 Sams recommended that a median
barrier be constructed on U.S. Route 101 for the approximately two-mile section between
the Clark Avenue overcrossing and the Santa Maria Way undercrossing. This was the
section of U.S. Route 101 where the accident occurred. At the time of his recommendation,
Sams was employed by respondent as a district traffic safety engineer. In his
recommendation, Sams said that "[t]he majority of the median is on a non-recoverable slope
reducing the effective median width to 25-30 feet." At the hearing on the motion for
judgment, Sams clarified that the non-recoverable slope "starts about 600 feet north of the
subject accident, and then goes a mile towards the Santa Maria Way undercrossing." Sams
wanted to continue the barrier to the Clark Avenue overcrossing "to achieve a logical
termination point." He had no concern about the topography at the site of the accident.
Sams testified: "It is relatively flat there with approximately a 10-to-1 slope in the median.
The roadbeds are very much close to being equal to each other as far as height."
17
Third Element
The third element of design immunity is that the public entity must present
"substantial evidence supporting the reasonableness of the plan or design." (Cornette v.
Department of Transportation, supra, 26 Cal.4th at p. 66.) "We are not concerned with
whether the evidence of reasonableness is undisputed; the statute provides immunity when
there is substantial evidence of reasonableness, even if contradicted. [Citation.]" (Grenier
v. City of Irwindale, supra, 57 Cal.App.4th at p. 940.) Thus, "[s]ummary judgment on the
ground of design immunity cannot be defeated by the creation of evidentiary conflicts as to
reasonableness." (Id., at pp. 941-942.) "Approval of the plan by competent professionals
can, in and of itself, constitute substantial evidence of reasonableness. [Citation.]" (Id., at
p. 940.)
Appellants contend that respondent failed to present the requisite substantial
evidence, but their contention is not supported by meaningful legal and factual analysis with
record references. Accordingly, the contention is forfeited. (Salehi v. Surfside III
Condominium Owners' Assn., supra, 200 Cal.App.4th at pp. 1161-1162.)
Loss of Design Immunity
Appellants claim that respondent lost its design immunity. "To demonstrate loss of
design immunity a plaintiff must . . . establish three elements: (1) the plan or design has
become dangerous because of a change in physical conditions; (2) the public entity had
actual or constructive notice of the dangerous condition thus created; and (3) the public
entity had a reasonable time to obtain the funds and carry out the necessary remedial work
to bring the property back into conformity with a reasonable design or plan, or the public
entity, unable to remedy the condition due to practical impossibility or lack of funds, had
not reasonably attempted to provide adequate warnings. [Citations.]" (Cornette v.
Department of Transportation, supra, 26 Cal.4th at p. 66.)
"[Appellants] bore the burden of production in opposition to the motion for summary
judgment 'to make a prima facie showing of the existence of a triable issue of material fact'
[citation] with respect to the loss of the design immunity. Since it is necessary to establish
all three elements of the loss of the design immunity [citation], [appellants] needed to make
18
a prima facie showing of the existence of a triable issue of fact with respect to each of those
elements to overcome [respondent's] motion for summary judgment." (Mirzada v.
Department of Transportation, supra, 111 Cal.App.4th at pp. 806-807.)
Appellants have not referred us to evidence in the record raising a triable issue of
material fact concerning the first element: the plan or design omitting a median barrier
became dangerous because of a change in physical conditions. In support of the first
element, appellants cite only two factors: (1) the trial court's remark that "a significant
change" occurred when the roadway became a freeway because the change "should have
had some effect on speed limits and how they are enforced," and (2) Dunlap's testimony
"that the average daily traffic in 1964 was 10,000 while it had increased to 40,000 by 2006."
Appellants do not explain how these changes made it dangerous not to erect a barrier along
the 76-foot wide median. Because appellants were required to make a prima facie showing
of a triable issue of material fact with respect to each of the three elements, we need not
consider the second and third elements.
Disposition
The judgment is affirmed. Respondent shall recover its costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
19
Jed Beebe, Judge
Superior Court County of Santa Barbara
______________________________
Michael Alder, Jennifer P. Burkes and Jefferson Saylor, for Appellants.
Jeanne Scherer, Acting Chief Counsel, California Department of
Transportation, David Gossage, Deputy Chief Counsel, Lucille Y. Baca and Karl H.
Schmidt, Assistants Chief Counsel and Stacy J. Lau, Deputy Attorney, for Respondent.
20