Opinion
H046067
02-23-2022
STEPHEN GRAHAM et al., Plaintiffs and Appellants, v. FEHR & PEERS et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 15CV282466
LIE, J.Stephen Graham suffered paralyzing injuries when his bicycle collided with an oncoming car that turned left across his path down Highway 9 in the City of Saratoga. Six years before the collision, Fehr & Peers, the City's on-call traffic engineer, had produced an initial plan for certain bicycle safety measures at the intersection where Graham was later injured. The City thereafter engaged another firm, BKF Engineers, to design and construct bicycle safety improvements at the site.
Graham and his wife sued multiple defendants, including Fehr & Peers and BKF, alleging negligence in the design and implementation of Highway 9 bicycle safety measures that had failed to prevent the collision. 1
On appeal, the Grahams challenge the trial court's grant of summary judgment for Fehr & Peers and the denial of their motion for a new trial as to Fehr & Peers. We independently conclude there was no triable issue of material fact as to whether Fehr & Peers' negligence was an actual, legal cause of Graham's injuries. We further discern no abuse of discretion in the trial court's denial of a new trial, where Graham's new evidence was expert testimony that was merely cumulative of the evidence he had previously presented in opposition to summary judgment. Accordingly, we affirm.
Three other defendants-the City, Caltrans and BKF-filed their own motions for summary judgment or summary adjudication, each of which the trial court denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Pleadings
On September 19, 2014, Stephen Graham was riding his bike southeast on Highway 9 in the City when Fariba Farahanchi, driving from the opposite direction on Highway 9, turned left towards westbound Austin Way, directly in Graham's path. In the ensuing collision, Graham suffered severe injuries and was paralyzed.
Graham and his wife, Jane Graham, initially sued Farahanchi, the City, and the State of California, acting by and through the Department of Transportation (Caltrans). As to the entities sued, Graham alleged that a "combination of factors (including but not limited to roadway configuration, striping, signage, trees, pruning of trees and limbs, and shadows) that create glare, shadows, lack of conspicuity, or other visibility phenomenon that obstruct the vision of motorists turning left from northbound State Route 9 onto Austin Way and prevent them from detecting bicyclists traveling south on State Route 9" created a dangerous condition involving "a substantial risk of automobile versus bicycle collision." 2
For simplicity, we refer to Stephen Graham and Jane Graham collectively as "Graham" in the remainder of this opinion.
The following year, Graham filed the operative first amended complaint, adding a cause of action against Fehr & Peers, BKF Engineers, and Pavex Construction. Specifically, Graham alleged that the newly added defendants were "careless and negligent in and about their design, evaluation, modification, construction, maintenance, supervision, operation, installation, placement, service, and control of the roadway, signage, landscaping, surrounding property, and street lanes at and near State Route 9 and Austin Way; and were careless and negligent in failing to warn or alert users of the roadway" to the previously alleged dangerous conditions. Graham further alleged that his injuries were "a direct and legal result of the above-described negligence and carelessness[.]"
Fehr & Peers generally denied the allegations and asserted 48 affirmative defenses.
B. Motion for Summary Judgment
In moving for summary judgment, Fehr & Peers asserted, inter alia, that its involvement in the design of the Austin Way/Highway 9 intersection could not have been an actual or legal cause of Graham's injury. Fehr & Peers argued "the actual plans which dictated design and construction of the Improvement were prepared, reviewed and approved by others"; the intersection, as constructed, deviated from the "Conceptual Plan" it provided to support the City's funding application; and any connection between the Conceptual Plan and the accident was "so attenuated that proximate legal causation should not be found." In opposition to Fehr & Peers' motion, Graham argued Fehr & Peers' negligence was a cause in fact of his injuries, because neither the final design as constructed nor Fehr & Peers' concept "was safe for Mr. Graham's use." And because it was foreseeable "that the City would take the recommendations of its on-call traffic engineers and use them as the foundation for the final design (ultimately developed by BKF) for the Intersection," Graham contended a reasonable trier of fact could find proximate cause as well. 3
We take the following facts related to the grant of summary judgment from the parties' separate statements of undisputed material facts, evidence admitted in conjunction with the motion for summary judgment, and admissions in the parties' briefs. (See Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1186, fn. 4.)
1. Initial Planning for the Highway 9 Capital Improvement Project, Phase III
By 2008, the City and the neighboring municipalities of Monte Sereno and Los Gatos were partners in the Highway 9 Capital Improvement Project (Highway 9 Project), an effort to improve bicycle and pedestrian safety along a 4.4-mile stretch of Highway 9 linking the three municipalities and unincorporated areas of the County of Santa Clara. In consultation with BKF Engineers-hired by Los Gatos in its management of the Highway 9 Project's first phase-the municipalities had developed a Master Plan for bicycle and pedestrian safety along both sides of Highway 9.
On April 10, 2008, City Engineer Iveta Harvancik emailed Sohrab Rashid, an engineer with Fehr & Peers, which had for several years been providing the City with on-call traffic engineering services. Explaining that the City had "learned about some remaining state funds (400k) available for bicycle improvements on Hwy 9[, ]" Harvancik asked Rashid to "give some thoughts to what kind of improvements could be used to increase the bicycle safety" at the intersection of Highway 9 and Austin Way. She noted that "we will need to submit the application for funds very quickly and a conceptual plan will be needed." She also sent Rashid a recent newspaper article that had concluded on the basis of 10-year traffic data that "Austin Way is one of the six worst areas in the County for bicycle crashes."
On April 15, 2008, after visiting the intersection with Frank Aochi, another Fehr & Peers employee, Harvancik e-mailed Rashid to confirm that Fehr & Peers would "collect all collision data for that area from different jurisdictions" and "prepare a conceptual improvement plan and a ballpark cost estimate for our review (there may be about $400k 4 available including design)." Rashid responded that "Frank will prepare the conceptual plan for improvements as you discussed," and confirmed that Fehr & Peers would ensure it had the collision reports. Aochi was not a licensed traffic engineer or civil engineer.
Harvancik's e-mails with Rashid also copied Gordon Sweet of BKF Engineers (BKF). BKF had designed Phases I and II of the Highway 9 Bicycle Safety Improvement Project on nearby stretches of Highway 9 and the City considered it "desirable and cost[-]effective to select [BKF] for other phases of the same project." Improvements at the intersection of Highway 9 and Austin Way would become Phase III of the Highway 9 Project. Replying to all, Sweet was skeptical of an early suggestion by Rashid, cautioning that "topography, right of way, environmental impacts, and cost limitations in this area might dictate otherwise." Sweet asked Fehr & Peers to "[p]lease be mindful of these site conditions and non-standard design features and requirements in State right of way[, ]" and noted the requirement "to seek design exceptions through Caltrans for these proposed improvements" and "the future Phase II Pedestrian Improvements in this area[, ]" which he warned "should not be precluded in the concept you are developing for the funding application." Further, Sweet asked, "[p]erhaps we could review the concept before it goes to Caltrans and provide you with input based on our understanding of the corridor (current improvements and future improvements) as well as our significant coordination efforts with Caltrans in order to get the Phase I improvements (including design exceptions) approved through the State."
In the two weeks after the site visit, Fehr & Peers collected collision data and discussed potential improvements with the City and others. Fehr & Peers "looked at the total number of collisions[] [but] did not look at the collision details from the detailed reports." Consequently, Fehr & Peers did not know how the collisions occurred or whether there was a distinctive pattern to the collision history. But Harvancik had not expected Fehr & Peers to develop an "accident profile" of the intersection as part of their 5 work. She was aware of the accident history at the intersection and attended six or seven public meetings where collisions between bicyclists and vehicles were discussed.
On April 30, 2008, Fehr & Peers finalized its Conceptual Plan, consisting of a two-page memo by Aochi and a drawing of recommended improvements at the intersection. Fehr & Peers recommended enhancing visibility by realigning the Austin Way approach to Highway 9 so that they would intersect squarely rather than at a 30-degree angle: the intention was that drivers preparing to turn right onto Highway 9 would have a better view of bicyclists approaching riding down the highway from the drivers' left. The Conceptual Plan also provided for added street lighting and for cutting back vegetation to improve both visibility and access to the bicycle lanes.
As for any risk of collisions precipitated by drivers turning left from northwesterly Highway 9 onto Austin Way, Fehr & Peers' recommendation was to install signage warning of the presence of the intersection and of bicyclists. At Harvancik's request, Fehr & Peers added a recommendation for bicycle detector loops at signal-controlled locations on the Highway 9 corridor, but the uncontrolled Austin Way intersection was not among the proposed locations. Fehr & Peers made no recommendation for modifying the painted median delineating the left-turn lane from Highway 9 onto Austin Way.
The same day that Fehr & Peers finalized its memo and drawing, Harvancik forwarded an earlier draft of the Conceptual Plan to BKF, asking Sweet if he had "other ideas for bicycle improvements on Hwy 9." One month later, the City submitted its funding application to Caltrans. Harvancik included in the application a "Summary of Bicy[c]le Related Collisions at SR9 and easterly Austin Way," which identified only the number of collisions and monthly average by year from 1997 to 2007.
2. Development of Phase III by BKF and the City
The City retained BKF as the design engineer for Phase III. A May 18, 2009 "Scope of Services" agreement defined "the project scope and limits of work": BKF was to (1) implement the realignment of the Austin Way approach to Highway 9 as 6 recommended by Fehr & Peers, (2) install a street light at the south approach of Austin Way, (3) remove vegetation per the Fehr & Peers memorandum, (4) landscape areas created by the newly realigned Austin Way intersection, and (5) coordinate the relocation of an existing power pole at the south approach of Austin Way.
But the Scope of Services also assigned specific tasks to BKF in "develop[ing]" and "refin[ing]" Phase III-a "project kick-off meeting" to "gain initial input about project goals, timetable, contacts, responsibilities, and schedules"; solicitation of public comment for the design team and public agencies to prepare and evaluate new designs; "preparation of conceptual design alternatives for each segment"; refining the conceptual alternatives based on site inspection; participation in a revised conceptual plan for submission to the City; and a "City meeting," in which "BKF will meet with the City and the agencies to discuss[, ] modify and agree to the preferred alternative for each segment," which concepts "will be used for the basis of design for the remainder of the project."
Between May 2009 and December 2012, BKF and the City worked together to develop and refine the plans for Phase III. BKF led two public meetings on March 31 and August 31, 2010, to solicit concerns and input regarding safety improvements. Two public comments raised concerns about the visibility of bicyclists in relation to the sun. One comment at the March 31 meeting noted that "Austin Way presents a problem with bikes vs. sun conflicts." At the August 31 meeting, one comment stated, "Austin Way - 2 hours before sundown, the visibility is bad for bicyclists for cars turning left on to Austin. Requesting a light for two hours." The City and BKF subsequently discussed these two comments.
BKF finalized the Plans and Specifications for the Project in November 2011. The final Plans and Specifications included measures that had not been part of Fehr & Peers' Conceptual Plan and omitted other measures that Fehr & Peers had recommended. In response to comments and concerns from Caltrans, the adjacent fire department station, and the City, the final design included a raised median rather than the striped median 7 Fehr & Peers would have left undisturbed. The purpose of the raised median was to force left-turning vehicles to slow down by preventing them from crossing over the striped median that Fehr & Peers had envisioned. Similarly, the final design omitted "intersection ahead" and bicyclist warning signs that Fehr & Peers had recommended, in favor of a "Watch for Bicyclists" sign posted for southbound drivers.
In May 2012, the City provided its Notice to Proceed to the construction contractor for Phase III, Granite Rock Company. Construction commenced in June 2012 and was completed in late 2012.
3. Expert testimony
Graham submitted a declaration from engineering expert Jaime O. Rodriguez and traffic collision reports from September 2004 to April 2007, which showed that "there had been at least seven collisions that involved a vehicle turning left onto Austin Way and into the path of oncoming cyclists," and that "[a]ll of the collisions occurred in the late afternoon, and many of the drivers reported that the shadows and glare prevented them from seeing the cyclists in the designated bike lane." Rodriguez opined that Fehr & Peers' "failure to review the [collision] data prior to the initial field review with the City of Saratoga staff and subsequent development of recommendations without the collision data analysis . . . mean[] that Mr. Aochi and Fehr & Peers failed to understand the issue . . . they were contractually obligated to resolve[, ] and the recommendations did not address the core crash pattern . . . at the intersection." In his opinion, "[a] reasonably careful traffic engineer or traffic engineering firm . . . should have realized that there was a safety issue at the intersection involving left-turning motorists colliding with cyclists."
Farahanchi testified that she did not see Graham or his bike before she made the left turn. She denied that the sun was in her eyes but surmised that Graham may have been in the shade when she began the turn.
Another engineering expert retained by Graham, Shakir Shatnawi, declared that, "an appropriate investigation consistent with the reasonable engineering standard of care" 8 would have yielded "an engineering solution that either relocated the left turn pocket, prohibited left turns, limited left turns to certain times of the day, or developed one or more other solutions incorporating multiple components to deal with foliage, visibility, traffic flows, sun, shadow, glare . . . and traffic sequencing."
D. Judgment and Post-Judgment Proceedings
The trial court granted the motion, finding that Fehr & Peers had "met its initial burden of showing its conceptual plan and recommendations did not cause Plaintiffs' injuries and Plaintiffs have not raised a triable issue of material fact in this regard."
Judgment was accordingly entered for Fehr & Peers.
Graham timely filed a motion for new trial, contending that (1) the trial court erred as matter of law in concluding there was no causal link between Fehr & Peers' negligence and Graham's injuries, and (2) the newly obtained opinion of the City's retained traffic and civil engineer expert, Laurence Neuman, warranted a new trial. The trial court denied the motion.
This timely appeal followed.
II. DISCUSSION
As a plaintiff alleging a cause of action for negligence, Graham must demonstrate that Fehr & Peers had a legal duty to use due care, breached that duty, and by its breach was the proximate or legal cause of Graham's injury. (Beacon Residential Cmty. Assn. v. Skidmore, Owings, Merrill LLP (2014) 59 Cal.4th 568, 573.) Fehr & Peers, for the purpose of this appeal, does not dispute the existence of a triable issue as to breach of a duty of care owed to Graham. Graham's appeal thus calls for us to determine whether the evidence before the trial court foreclosed as a matter of law a finding that Fehr & Peers' Conceptual Plan and recommendations were more likely than not a cause of Graham's injury. We conclude that the evidence established no triable issue of material fact as to causation. 9
A. Summary Judgment
1. Standard of Review
Where a defendant has prevailed on summary judgment, "' "we review the record de novo to determine whether [they have] conclusively negated a necessary element of the plaintiff's case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial." [Citation.]' [Citation.]" (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler); Genisman v. Carley (2018) 29 Cal.App.5th 45, 49 [defendant moving for summary judgment bears "the burden of showing that . . . one or more elements of the cause of action cannot be established"].) The moving defendant "bears the burden of persuasion that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) But upon a defendant's prima facie showing of the nonexistence of such an element, the plaintiff "is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Id. at p. 850.)
Like the trial court, in undertaking our independent review, "[w]e examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party's favor, and (3) the opposition-assuming movant has met its initial burden-to 'decide whether the opposing party has demonstrated the existence of a triable, material fact issue.' [Citation.]" (Kim v. County of Monterey (2019) 43 Cal.App.5th 312, 323.)"' "We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party."' [Citation.]" (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.) 10
2. General Principles of Legal Cause
Because the sole issue disputed in the instant appeal is causation, our analysis "proceeds in two stages: determining cause in fact and considering various policy factors that may preclude imposition of liability." (Viner v. Sweet (2003) 30 Cal.4th 1232, 1235, fn. 1 (Viner).)
Determining whether a defendant's negligent act is an actual cause or"' "a necessary antecedent" '" of plaintiff's injury requires us to ascertain whether" 'but for'" the defendant's negligence, plaintiff's injury would have been avoided. (State Dept. of State Hospitals v. Superior Ct. (2015) 61 Cal.4th 339, 352 (State Hospitals); Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 784 (Cabral).) To establish but-for causation, the plaintiff must"' "introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of [plaintiff's harm]." '" (Viner, supra, at p. 1243.)"' "A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." [Citation.]' [Citation.]" (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752.)
Even where a defendant's conduct is an actual cause of a plaintiff's harm, however," '[r]ules of legal cause . . . operate to relieve the defendant whose conduct is a cause in fact of the injury, where it would be considered unjust to hold him or her legally responsible.'" (State Hospitals, supra, 61 Cal.4th at p. 353.) "[A] defendant's 'conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.' [Citation.]" (Novak v. Continental Tire North America (2018) 22 Cal.App.5th 189, 196 (Novak).) "For liability to attach, there must be 'some reasonable connection between the original negligence and its consequences, between the harm threatened and the harm done.' [Citation.]" (Id. at 11 p. 196.) Although" '[o]rdinarily, proximate cause is a question of fact which cannot be decided as a matter of law from the allegations of a complaint[, ]'" the question becomes one of law" 'where the facts are such that the only reasonable conclusion is an absence of causation . . . .'" (Modisette v. Apple, Inc. (2018) 30 Cal.App.5th 136, 152 (Modisette).)
3. Fehr & Peers' initial burden
Fehr & Peers carried its initial burden of negating causation by establishing a prima facie case that its role was limited, that it was BKF and the City that ultimately designed and constructed the modifications to the Austin Way intersection, and that their design differed materially from Fehr & Peers' Conceptual Plan in ways that reflected their recognition of the risk to bicyclists like Graham.
In support of the limited character of its role, Fehr & Peers produced evidence that, as the City's on-call traffic engineer, it was asked to "very quickly" support the City's application for funding by preparing a conceptual plan for bicycle safety improvements at a single intersection of the 4.4-mile Highway 9 Project. The City did not ask or expect it to diagnose the root cause of accidents at the intersection, and within three weeks of the City's request, Fehr & Peers submitted its three pages of work product. After submission of this Conceptual Plan, Fehr & Peers ceased any involvement in Phase III design.
Fehr & Peers also produced evidence that BKF, conversely, was charged with broad independent responsibility for investigating the site conditions and developing the Phase III design accordingly. Given BKF's existing engagement as design engineer for Phases I and II of the Highway 9 Project, the City involved BKF early in its brief consultation with Fehr & Peers, then formalized BKF's role as designer and engineer for Phase III before submitting the application for funding. BKF's Scope of Services expressly contemplated that BKF's responsibilities were not limited by the Conceptual 12 Plan but included consideration of alternative improvements and concepts based on input from the public, the City, and other public agencies.
To establish that BKF's independent contractual authority was not merely theoretical, Fehr & Peers produced evidence that the City expected BKF to use the Fehr & Peers Plan only as a "starting point" for considering improvements to the intersection. And in contrast to the compressed time frame in which Fehr & Peers produced the Conceptual Plan, BKF's preparation of preliminary and final designs for Phase III spanned 2008 to 2011, in coordination with the City, the public, and Caltrans. And it was undisputed that Phase III, as constructed, varied from Fehr & Peers' Conceptual Plan. The final design omitted certain of the warning signs Fehr & Peers had recommended in the Conceptual Plan and added a raised left-turn median on Highway 9 in an effort to limit the speed of drivers like Farahanchi turning across the downhill lanes of southeasterly Highway 9. The City approved and accepted Phase III as constructed.
The addition of the raised median was not the only evidence reflecting the independent recognition by BKF and the City of the specific hazard to bicyclists that Graham maintains Fehr & Peers failed to notice. City engineer Harvancik, for example, testified she was aware of "sun . . . conflicts at the Austin Way intersection," public "comments about a glare and shadows" at the location, as well as the accident history at the intersection, from six or seven public meetings over the previous eight years where it was discussed. According to Harvancik, one purpose of Phase III's trimming of vegetation along the bike lanes was "to address the shadows on the highway that were making it difficult for left-turning cars to see the cyclist." BKF's project engineer similarly testified that BKF was aware that "Austin Way presents a problem with bikes versus sun conflicts[, ]" but considered the issue of sunlight to be beyond the scope of civil engineering solutions. The City and BKF explored the possibility of using various sensor-based warning signals to alert cars to oncoming bicyclists and thereby minimize 13 the risk of collisions with cars traveling on Highway 9 from the southeast. But the City ultimately decided not to include those improvements in Phase III.
Taken as a whole, this evidence was sufficient to meet Fehr & Peers' initial burden of establishing its Conceptual Plan was neither an actual nor a proximate legal cause of Graham's injuries. Rather, it was BKF that assumed control over the design of Phase III and actually exercised that control by departing from the Conceptual Plan. The City in turn approved BKF's design, albeit after rejecting proposed features that were intended to mitigate the very hazards to which Graham attributes his collision with Farahanchi. Even if it were foreseeable that the City and BKF might adhere rigidly to the Conceptual Plan, their actual adoption of a different design for the express purpose of mitigating the hazard to bicyclists like Graham was at least sufficient to shift the burden to Graham of raising a triable issue of material fact as to the threshold issue of actual cause.
Disputing the trial court's determination that Fehr & Peers met its initial burden, Graham argues that the trial court improperly framed Graham's theory of liability as contingent upon the City's actual implementation of Fehr & Peers' Conceptual Plan without deviation or expansion. Graham specifies: "[B]y failing to analyze collision history prior to making traffic engineering recommendations to the City, Fehr & Peers negligently failed to use the skill and care that a reasonably careful traffic engineer would have used to analyze and remediate bicyclist safety concerns at the Intersection; as a result, nobody identified the real problem there." The "failure in the first instance to analyze the collision history of the intersection set in motion a chain of causation that resulted in Mr. Graham's injuries." In other words, Graham's theory is that-even though Phase III as built deviated from the Conceptual Plan-Fehr & Peers' negligent failure to properly diagnose the hazard at Austin Way infected the entirety of the ensuing Phase III design and construction process, which in turn failed to prevent the injuries to Graham. 14
We agree that the element of causation depends on the nature of the breach alleged. But Fehr & Peers did produce evidence that BKF and the City in fact knew of the visibility hazard Graham maintains it negligently failed to diagnose. Furthermore, the burden of a defendant moving for summary judgment is to "negat[e] only those' "theories of liability as alleged in the complaint"' and . . . not . . . to '"' "refute liability on some theoretical possibility not included in the pleadings," '"' simply because such a claim was raised in plaintiff's declaration in opposition to the motion for summary judgment. [Citation.]" (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1254; see also Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1102.) Graham's misdiagnosis theory was not set forth in the operative complaint, which did not differentiate between Fehr & Peers and the other entities involved in the Highway 9 Project. His refinement of the theory of liability as to Fehr & Peers individually was articulated for the first time in opposition to Fehr & Peers' motion. Accordingly, Graham's negligent-diagnosis theory is material not to whether Fehr & Peers met its initial burden, but to whether Graham carried its burden in response.
4. Graham's burden
Where, as here, a moving defendant has carried its initial burden, "the plaintiff 'may not rely upon the mere allegations or denials in its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .'" (Weseloh Family Ltd. Partnership v. K.L. Wessell Construction Co., Inc. (2004) 125 Cal.App.4th 152, 162-163.) Graham relies on the collision history at the intersection, the declaration of its retained engineering expert, Dr. Shakir Shatnawi, and a provision in BKF's Scope of Services contract that it "[i]mplement the Fehr & Peers['] recommended Austin Way Intersection realignment." Graham also included 15 with its opposition the declaration of Jaime Rodriguez, although Graham did not reference this in his briefing.
We consider record evidence whether or not specifically addressed by Graham because the summary judgment statute requires a reviewing court to consider "all of the evidence set forth in the papers," including facts stated in declarations, exhibits, points and authorities or other papers presented to the court. (Castillo v. Glenair, Inc. (2018) 23 Cal.App.5th 262, 283 [court should consider all admissible evidence of which party opposing motion has had notice and opportunity to respond]; see Code Civ. Proc., § 437c.)
According to Graham, "[t]he logic is simple: If Fehr & Peers had not been negligent, it would have recommended that a traffic signal be installed or that left-hand turns be prohibited at the Intersection. If Fehr & Peers had recommended one (or both) of these measures, then more likely than not, BKF's final plans and specifications would have incorporated active means to eliminate the left-turning-auto/bicycle conflict- whether via installation of a traffic signal or relocation of the left-hand turn. And if one (or both) of these measures had been implemented, Mr. Graham would not have collided with Ms. Farahanchi's vehicle." We doubt neither the simplicity of the logic nor even the plausibility of the hypothesis. But once Fehr & Peers met its initial burden, Graham's burden was not merely to articulate a plausible hypothesis but to produce some evidence from which the court could discern a triable issue of material fact.
Absent evidence, Graham's logic is difficult to distinguish from the conjectural logic that the Supreme Court declined to endorse in State Hospitals, "depending on a long series of determinations that would have been required after [defendant's] breach in order for the injury to have been prevented." (State Hospitals, supra, 61 Cal.4th at p. 357.)
Graham's first link in the causal chain is the threshold breach of duty. The traffic collision reports do support a reasonable inference that Fehr & Peers-had it analyzed the root cause of accidents at the intersection-would have recognized that late afternoon sun and shadows would impair the ability of motorists turning left from northbound Highway 16 9 onto Austin Way to detect oncoming southbound bicyclists. For purposes of our analysis, therefore, we assume that Fehr & Peers negligently failed to appreciate the risks posed by drivers turning left onto Austin Way, as opposed to those turning right onto Highway 9. But Graham's burden of producing evidence that would establish a triable issue of material fact extends to each successive link in the causal chain he has posited. At this stage, more was required than hypotheses unsupported by facts.
a. Fehr & Peers' recommendation
Graham contends that Shatnawi's declaration supported an inference that recognition of the root cause of collisions at Austin Way "would, in turn, have led to an April 30th memo that proposed proper measures to address this danger, including the simplest and cheapest option of prohibiting left-hand turns at the Intersection." But Shatnawi's declaration belies this contention.
As a threshold matter, Shatnawi offered no opinion as to what more Fehr & Peers might have recommended but opined only as to what BKF should have known and done, given the primacy of its role and the breadth of its contractual duties. He was explicit that it was BKF that had the "duty and responsibility to evaluate the safety ramifications of any and all work requested by [the City] . . . in connection with the contract [for the Project]"; "the governing standard of care for a professional engineer engaged in this project required BKF, within the scope of the Phase III contract, to consider and evaluate safety." He viewed it as BKF's duty to "do a safety study that included an investigation into the number, type, frequency and causes of the accidents at the location it was retained to design for" and "to evaluate the issues related to the effect of the sun, adjacent foliage, trees, shadows and visibility impairment on motorists making left [turns at] various times of the day, as that visibility . . . contributed to injury [in] vehicle vs. bicycle collisions at the subject intersection." Unlike BKF's project engineer, a "reasonably careful civil engineer, upon hearing the comments about the Austin Way intersection at the public meetings, would not have ignored them on the belief that no civil engineering 17 solution existed for the problem. The standard of care required [BKF] to account for and address the public comments about the intersection." Nothing in the record reflects that Fehr & Peers had comparable (or any) responsibility or opportunity to investigate or refine Phase III design and development over the years following its Conceptual Plan.
Nor did Shatnawi support Graham's contention that the only reasonably prudent recommendation would have been to limit or prohibit left turns onto Austin or to regulate them by a left-turn signal. Although Shatnawi did identify these as possible solutions, he did so in a nonexhaustive list of alternatives that included "develop[ing] one or more other solutions incorporating multiple components to deal with foliage, visibility, traffic flows, sun, shadow, glare, traffic flows, and traffic sequencing.'" Accordingly, Shatnawi's declaration was at least as consistent with the likelihood that Fehr & Peers, had it understood the root causes of the bicycle collision history at Austin Way, would merely have broadened its recommendation for bicycle detector loops to include a similar type of sensor-based warning system at Austin Way, much as BKF had unsuccessfully proposed to the City in 2010. And Graham identified no other evidence to support an inference that Fehr & Peers would have included the particular traffic measures he argued were necessary. While it was plausible to surmise that Fehr & Peers might have included such measures, Graham's burden was to produce evidence sufficient to permit a reasonable trier of fact to find it more likely than not that Fehr & Peers would have done so. (Aguilar, supra, 25 Cal.4th at p. 851.) Speculation does not meet this burden. (Saelzler, supra, 25 Cal.4th at p. 781 [plaintiff's expert testimony too speculative and tenuous to create triable issue regarding causation].) 18
The Rodriguez declaration does not remedy this deficiency. Rodriguez opined that Fehr & Peers should have investigated the collision history at the intersection but offered no opinion as to what specific improvements they would have recommended, had they undertaken that investigation. In other words, his declaration went to duty and breach, without addressing causation.
b. BKF's response
The next link in Graham's chain of causation was likewise untethered to evidence. Graham argues: "Had such measures been recommended by the City's on-call traffic engineers, they would have been implemented by the civil engineers (BKF) who then came in and refined the traffic engineers' plan." In support of this theory, Graham cites the provision in BKF's Scope of Services contract with the City providing that it would "implement the Fehr & Peers recommended Austin Way Intersection realignment." This provision was not exclusive, however. As Graham successfully argued in opposition to BKF's motion for summary judgment, other language in the Scope of Services imposed on BKF the independent duty to undertake its own investigation and develop the design for all of Phase III, not merely the realignment of how Austin Way intersected with the highway. Harvancik testified that she did not consider the implementation of the Austin Way realignment to mean that those were the only improvements that would be implemented for Phase III. No contrary interpretation by BKF or any other City official is evident in the record.
Graham further argues that, because the Conceptual Plan "used mandatory language and contained no disclaimers or warnings limiting the purpose for which the plan was to be used," "BKF would ultimately use those recommendations as the foundation for [its] final design for the Intersection, . . . without undertaking their own root-cause analysis of why the Intersection was so dangerous to bicyclists." We do not read the Conceptual Plan as purporting to issue a mandate or impose a limitation, nor do we discern any evidentiary basis for inferring that the City or BKF construed it as such. On the contrary, the evidence showed Fehr & Peers was charged with making preliminary recommendations, whereas all parties understood that BKF would be the design engineer for Phase III and the City would evaluate BKF's design alternatives. More importantly, the Conceptual Plan was neither inconsistent with nor exclusive of the specific measures Graham alleges should have been implemented. Accordingly, even if 19 BKF and the City construed the recommendations of the Conceptual Plan as mandated, they indisputably had the authority to exceed them.
Nor was there evidence to suggest that BKF's design responsibility was purely theoretical. Sweet's swift response to Rashid's initial proposal to widen bike lanes- weeks before Fehr & Peers completed its Conceptual Plan-undermined any supposition that BKF was deferential to Fehr & Peers' judgment. Similarly, Harvancik directed Aochi to add a recommendation for bicycle loops at other Highway 9 intersections and then separately solicited BKF's input on the Conceptual Plan even before formalizing BKF's Phase III Scope of Services or submitting the funding application-not actions that suggested an expectation or likelihood that BKF would defer to Fehr & Peers' judgment. And BKF and the City did in fact exercise their own discretion to reject measures Fehr & Peers had recommended and to add improvements that were absent from the Conceptual Plan.
Graham notably did not dispute Fehr & Peers' showing that principals with BKF and the City had been aware of reported conflicts between southbound bicyclists and northbound vehicles turning left onto Austin Way, including limited visibility in that location in the late afternoon caused by sun and shadows. They nonetheless did not implement the traffic control measures that Graham maintains were essential. Rather, the implementation of a raised median, rather than the striped median that the Conceptual Plan left in place, further confirms that the City did not consider Fehr & Peers' assessment of the risks or the adequacy of the Conceptual Plan to be limiting, or Fehr & Peers' recommendations to be binding. In other words, BKF was aware of the problem and believed its design was adequate, suggesting that even if Fehr & Peers had correctly identified the hazard from left-turning drivers, BKF would have proceeded exactly as it ultimately did. 20
c. City and Caltrans approval
Graham asserts: "[A]t the end of this chain of events, Ms. Farahanchi never would have been able to turn left in front of Mr. Graham's bicycle on September 19, 2014." Implicit in this assertion is the premise that if BKF had, at Fehr & Peers' suggestion, sought to include Graham's proposed measures, then the City and Caltrans would each have approved the proposals in turn. The evidence, however, showed that the City had in fact rejected proposals by both Fehr & Peers and BKF, for signage and bicycle detectors, respectively. Accordingly, the City's acceptance of the left turn limitation or prohibition that Graham maintains Fehr & Peers should have recommended cannot be presumed.
As for Caltrans, the record is replete with references to the necessity of Caltrans approval. But it includes no evidence as to the likelihood of Caltrans approving either a signal control or a prohibition of left turns at Austin Way. Neither of Graham's experts addressed this issue, even though both cited the depth of their experience in traffic engineering, and Shatnawi testified that he had worked for Caltrans in a number of positions for over 20 years. Graham notes that Fehr & Peers cited no evidence to establish that Graham's proposed left-turn limitations would have been infeasible. But once Fehr & Peers met their initial burden, it became Graham's obligation to present evidence from which a trier of fact could conclude that these measures were feasible. Graham's bare argument that it "can reasonably be inferred that those entities would have approved" them does not satisfy his burden of production.
In sum, each link in Graham's theoretical chain of causation presumed a particular result, with little to no evidence from which a trier of fact could find the presumed result more probable than not. A"' "possible cause only becomes 'probable' when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action." '" (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416.) To establish a triable issue of material fact, inferences must be 21 reasonably deducible from actual evidence. (Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161.) Such evidence is lacking here.
Absent any supporting evidence, we are unable to draw the series of inferences Graham invites. (Leslie G. v. Perry & Associates, et al. (1996) 43 Cal.App.4th 472, 487.) "[P]roof of causation cannot be based on mere speculation, conjecture and inferences drawn from other inferences to reach a conclusion unsupported by any real evidence, or on an expert's opinion based on inferences, speculation and conjecture." (Id. at p. 488 [landlord's breach of duty to secure premises against foreseeable criminal acts of others was not a cause in fact of assailant's rape of tenant, where only evidence of causal nexus was opinion testimony of tenant's expert].) As in Leslie G., there was no evidence from which a jury could have determined that Graham's injuries more probably than not would have been avoided but for Fehr & Peers' presumed negligence, and Graham's argument for causation is based on inferences drawn preferentially from other inferences, without regard to an array of reasonable causal explanations. (See also Saelzler, supra, 25 Cal.4th at p. 781 [plaintiff's expert testimony regarding causation too speculative and tenuous to create triable issue].)
Even if we treat Fehr & Peers' conduct as an actual cause of Graham's injuries, the connection between Fehr & Peers' preparation of the Conceptual Plan is too attenuated to show Graham's accident to be within the scope of the risk created by that conduct. As the Supreme Court stated in State Hospitals, the rules of legal proximate cause" 'operate to relieve the defendant whose conduct is a cause in fact of the injury, where it would be considered unjust to hold him or her legally responsible.'" (State Hospitals, supra, 61 Cal.4th at p. 353.) Fehr & Peers, in its on-call capacity, was asked by the City to "very quickly" prepare a conceptual plan to support an application for funding. It was not reasonably foreseeable that preparation of such a plan-to be followed by years of detailed planning and design by other entities with the expertise, discretion, and contractual responsibility to develop and implement the bicycle safety 22 improvements-would foreclose or discourage meaningful consideration of other improvements. And, as the evidence established, it did not. Accordingly, "the connection between defendants' conduct and the injury suffered is too attenuated to show the . . . accident to be within the scope of the risk created by defendant's conduct . . . ." (Novak, supra, 22 Cal.App.5th at pp. 195-197, quoting Cabral, supra, 51 Cal.4th at p. 779.) Fehr & Peers' preparation of the Conceptual Plan, however faulty," 'did nothing more than create the condition that made Plaintiffs' injuries possible' ": no reasonable jurors would identify the Conceptual Plan"' "as being actually responsible for the ultimate harm" '" to Plaintiffs and the conduct was" 'too remotely connected with Plaintiffs' injuries to constitute their legal cause. '" (Modisette, supra, 30 Cal.App.5th at p. 154.)
We liberally construe the nonmoving party's evidence and resolve any doubts about the propriety of a summary judgment in the plaintiff's favor. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) But liberal construction of a party's evidence does not relieve a party of the burden of production: "[w]e can find a triable 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.' [Citation.]" (Id. at p. 433.) For the reasons set forth above, even giving plaintiff the benefit of these favorable rules of construction, Graham's submission in opposition to summary judgment lacked specific facts showing that Fehr & Peers' alleged negligence was a legal proximate cause of Graham's injuries. (Saelzler, supra, 25 Cal.4th at p. 769.)
B. The Motion for New Trial
Graham contends the trial court abused its discretion in denying the motion for new trial because the deposition testimony of Laurence Neuman constituted newly discovered evidence material to its case. 23
Although" 'summary judgment . . . is a determination that there shall be no trial at all[, ]" the unsuccessful opponent may challenge that determination by motion for a new trial. (Aguilar, supra, 25 Cal.4th at p. 858.) To warrant a new trial based on newly discovered evidence, the moving party must demonstrate that" '(1) the evidence is newly discovered; (2) he or she exercised reasonable diligence in discovering and producing it; and (3) it is material to the . . . party's case.' [Citation.]" (Doe v. United Air Lines, Inc. (2008) 160 Cal.App.4th 1500, 1506; see also Code Civ. Proc., § 657, subd. 4.) Newly discovered evidence is considered "material" if it is likely to produce a different result. (In re Marriage of Smyklo (1986) 180 Cal.App.3d 1095, 1101.) The trial court's determination whether newly discovered evidence warranted a new trial was a discretionary one and "is given great deference on appeal." (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160.)
Here, the trial court ruled that Neuman's testimony was not "material" and added "nothing especially 'new'" because Graham had "made the same argument regarding the lack of an accident profile study in opposing Fehr's motion and attempted to support it with expert testimony." The court further found that Neuman's testimony, like that of Graham's prior experts, went to the issue of Fehr & Peers' negligence but did not "establish any evidence of causation; he simply speculates about what might have happened if Fehr had done a similar analysis to that done by him."
These determinations were a proper exercise of the trial court's discretion. Neuman opined that Rashid should have investigated the cause of the bicycle accidents, even though the total number of accidents at the intersection per year was consistently below the threshold typically accepted as sufficient to warrant installing a traffic signal. He further opined that Fehr & Peers should have discerned a pattern to the accidents. Neuman thus merely reaffirmed the misdiagnosis theory that Graham's previous 24 witnesses had presented. His opinion does not, however, support the essential next links in the chain of causation on which Graham's claim against Fehr & Peers depends.Graham contends that the trial court improperly determined that cumulative evidence can never be material. We do not read the trial court's ruling as having made so categorical a determination. Rather, it determined Neuman's testimony was not material because it went to breach of duty rather than causation, a determination well within the scope of its discretion.
Neuman testified that he had not fully analyzed the feasibility of signalizing the Austin Way intersection, clarifying that he believed only that "it should have been looked at" and "the engineers should have thought about it." As for a left turn prohibition, he acknowledged this might have been politically infeasible. Neuman also volunteered that theoretically feasible traffic control measures directed at downhill bicyclists, such as a warning to reduce speed, might be ineffective because of anticipated noncompliance with those controls.
Fehr & Peers argues that expert opinion based on evidence previously known to the proponent of the opinion testimony can never be "new" within the meaning of Code of Civil Procedure section 657. We do not by our holding here endorse this view. The prior availability of the evidence on which the later acquired expert opinion is based may indeed be relevant to the trial court's determination of whether the moving party exercised reasonable diligence in discovering the opinion evidence. But we discern nothing in the authorities cited by Fehr & Peers that would support the broad, categorical rule it proposes.
Because we conclude that the trial court did not abuse its discretion in determining the opinion testimony was neither new nor material, we need not reach the parties' other arguments regarding the motion for new trial. (Sherman, supra, 67 Cal.App.4th at p. 1161.)
III. DISPOSITION
The judgment is affirmed. 25
WE CONCUR: GREENWOOD, P.J., DANNER, J. 26