Opinion
F077480
02-03-2021
DEISY GRANADOS ASCENCIO et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA, Defendant and Respondent.
John Fitzpatrick Vannucci for Plaintiffs and Appellants. Jeanne Scherer, Lauren A. Machado, Douglas L. Johnson and Omead Masha, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CECG03569)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge. John Fitzpatrick Vannucci for Plaintiffs and Appellants. Jeanne Scherer, Lauren A. Machado, Douglas L. Johnson and Omead Masha, for Defendant and Respondent.
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Plaintiffs were injured when a vehicle crossed a freeway median and struck their vehicle head on. They sued the State of California, Department of Transportation (Caltrans), alleging the lack of a median barrier at the collision site constituted a dangerous condition of public property. (Gov. Code, § 835.) Caltrans moved for summary judgment, contending the design immunity provided by section 830.6 applied. In response, plaintiffs argued Caltrans lost its design immunity because of changed physical conditions at the collision site. The trial court granted summary judgment, concluding plaintiffs did not demonstrate a triable issue of material fact as to whether changed physical conditions had caused the absence of a median barrier to become dangerous. The trial court did not address the other elements relating to the loss of design immunity—whether Caltrans had notice of the danger and whether Caltrans had a reasonable time to obtain funds and perform the remedial work. Plaintiffs had the burden of proof on these additional elements.
All unlabeled statutory citations refer to the Government Code.
We conclude the trial court properly granted summary judgment because plaintiffs did not demonstrate a triable issue of material fact as to whether Caltrans had a reasonable time prior to plaintiffs' collision to obtain funds and carry out the remedial work necessary to bring the property back into conformity with a reasonable design or plan. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66 (Cornette).)
We therefore affirm the judgment.
FACTS
The plaintiffs in this lawsuit are Deisy Granados Ascencio, Jose Granados Cruz, Exzequiel Granados, and the guardians ad litem for three minors. Caltrans is one of the named defendants. The Accident
On November 17, 2012, at approximately 7:40 a.m., defendants Aida and Jose Perez were traveling northbound on Interstate 5 (I-5) in a 1999 Chevrolet Suburban. They were in the number one lane approximately 0.4 miles south of State Route 198. The number two lane was occupied by a white semi-tractor and trailer operated by an unknown driver. The semi-tractor and trailer swerved out of its lane and caused the Suburban to swerve onto the west shoulder of northbound I-5. Overcorrecting, the Suburban swerved across both northbound lanes to the east shoulder. From there, it crossed back to the west shoulder and through the median onto southbound I-5. The median was unpaved, approximately 84 feet wide, and had no barrier.
Plaintiffs were travelling southbound on I-5 in a 2007 Toyota 4Runner when the Suburban crossed the median. The Suburban crashed head-on into plaintiffs' vehicle. Plaintiffs were thrown about in the 4Runner, causing injuries. The collision occurred on I-5 in Fresno County at approximately postmile 14.45. Caltrans Procedure
Caltrans has a "Multilane Cross Median Collision Monitoring [(MCMCM)] Program." This program produces monitoring reports, which were formerly known as "Median Barrier Monitoring Program" reports. The MCMCM reports are generated annually by Caltrans' Headquarters (HQ) Office of Performance. The appellate record contains portions of MCMCM reports that address I-5 in Fresno County for the 2010 to 2014 cycles. The annual MCMCM reports are prepared to identify and report locations that may warrant median barrier or other countermeasure projects. The stated purpose of the reports is to reduce the number and severity of cross-median collisions.
The annual MCMCM reports are sent to the deputy district directors and the district traffic safety engineers for all 12 Caltrans' districts across the state. The reports include investigation instructions and a list of locations that meet various study warrants. Locations marked "REPORT" require an investigation and report. The districts perform the investigation, determine if countermeasures are appropriate and, if so, recommend a countermeasure to HQ Office of Performance. If HQ Office of Performance concurs with the recommendation, the next step is for the district to initiate a project and request conceptual project approval.
The 2011 MCMCM report shows the segment of I-5 in Fresno County from postmile 12.87 to postmile 13.80 triggered a mandatory investigation. The cover memorandum for the 2011 MCMCM report was dated December 26, 2012, which was 39 days after plaintiffs' collision.
On June 7, 2013, District 6 (which includes Fresno County) reported the results of its investigation of that segment of I-5, concluding: "This location meets the Cross Median Collisions Study Warrant (Total) for a median barrier and ha[s] a cross-median collision rate of 0.22 (fatal acc./mi/yr) and 0.65 (total acc./mi/yr)." District 6 recommended that a cable median barrier be installed from postmile 10.89 to postmile 14.87 and described these locations as the logical starting and ending points for the barrier. The segment of I-5 recommended for a median barrier contains the location of plaintiffs' collision at postmile 14.45.
On June 24, 2013, HQ Office of Performance issued a memorandum concurring in District 6's recommendation to initiate a safety project to install a cable median barrier from postmile 10.89 to postmile 14.87. The memorandum stated the estimated cost for the proposed improvement was $850,000 and asked District 6 to "send HQ Office of Performance the draft Small Capital Value Projects (SCVP) Project Initiation Documents (PIDs) for review and approval prior to signing the final SCVP-PIDs. These projects should be amended into the SHOPP once the final PIDs are signed."
SHOPP is an acronym for the State Highway Operation and Protection Program. SHOPP projects are limited to capital improvements relative to maintenance, safety, and, if warranted, rehabilitation for state highways and bridges that do not add a new traffic lane to the system.
On November 5, 2013, District 6's deputy district director signed a "PROJECT PROPOSAL FORM [¶] 'Conceptual Report' " recommending the installation of 11.5 miles of cable barrier in the median of I-5. The first section of the proposed barrier started in Kings County and extended 2.25 miles into Fresno County. The second section ran from postmile 10.89 to postmile 14.87 in Fresno County. The preliminary estimated construction cost of the 11.5 miles of median barrier was $2.4 million, which was to be funded 100 percent by the state (i.e., no local funding). The Conceptual Report also stated the fiscal year of the proposed construction had yet to be determined.
In 2017, over three years after the issuance of the Conceptual Report in November 2013, Caltrans completed Project No. 06-0S3504. This project included the installation of a cable barrier in the median of I-5 in Fresno County from postmile 10.89 to 14.87.
PROCEEDINGS
In November 2013, plaintiffs filed a complaint with a cause of action against Caltrans. Plaintiffs alleged Caltrans created a dangerous condition at the accident location by, among other things, failing to provide a median barrier. Caltrans' answer included a general denial and eight affirmative defenses, including design immunity under section 830.6.
In October 2017, Caltrans filed a motion for summary judgment supported by a separate statement of undisputed material facts, a memorandum of points and authorities, exhibits, and 12 declarations. Caltrans asserted plaintiffs' dangerous condition theory of liability failed because (1) Caltrans was immune under the design immunity set forth in section 830.6 and (2) the condition of I-5 at the location of the vehicle collision did not constitute a dangerous condition. Caltrans argued the design of that location of I-5 complied with applicable standards and was approved by licensed engineers and, moreover, plaintiff could not make a prima facie showing of dangerousness because there was not a single other substantially similar collision from postmile 14.35 to postmile 14.55 despite being used by more than 125 million vehicles over a 10-year period.
Caltrans' moving papers acknowledged that its design immunity could be lost in certain circumstances if there was a change in physical conditions, stated plaintiffs bore the burden of showing the elements necessary for the loss of design immunity, and addressed those elements while stating it reserved further argument and evidence if necessary. Caltrans referred to the declaration of Kim Nystrom, a consulting civil engineer retained as an expert in this litigation. Nystrom had worked for Caltrans in various capacities from 1983 through February 2001 and was aware of its policies and procedures, including its roadway design and review process. Caltrans argued Nystrom's declaration demonstrated that there was no changed physical condition of the freeway and no notice to Caltrans that some change presented a dangerous condition.
Plaintiffs' opposition papers included a separate statement in response to defendant's separate statement, a memorandum of points and authorities, and a declaration from Ed Ruzak, a civil engineer retained as plaintiffs' expert witness. Plaintiffs' separate statement included assertions of additional material facts. The additional facts described cross-median crashes in the vicinity of the accident location and asserted: "Due to the lack of the median barrier, given the five cross-median accidents that occurred from October 2006 to March 2010, the subject roadway constituted a dangerous condition of public property at the time of the November 17, 2012 crash." On the question of timing, plaintiffs' additional facts asserted the March 2010 crash provided Caltrans notice of the danger and "[t]hat gave Caltrans enough time to place a cable barrier (like the one it eventually did place) prior to [plaintiffs'] November 17, 2012 crash."
Caltrans filed a response to the additional facts asserted in plaintiffs' separate statement, a reply brief, and objections to Ruzak's declaration. Caltrans disputed plaintiffs' assertions that a dangerous condition existed and that Caltrans had enough time to place a cable barrier prior to plaintiffs' collision. Order , Judgment and Appeal
On January 5, 2018, the trial court issued a six-page tentative ruling stating the motion for summary judgment should be granted. The tentative ruling stated (1) Caltrans met its burden as moving party, (2) plaintiffs' opposition did not dispute that Caltrans met its burden of establishing all three elements of design immunity, (3) plaintiffs contended that changes in physical conditions of the property resulted in a loss of design immunity, and (4) plaintiffs' evidence did not raise a triable issue of fact as to whether Caltrans should lose its design immunity. On January 9, 2018, the court held a hearing on the summary judgment motion and adopted its tentative ruling as the order of the court. On January 22, 2018, the court signed and filed a written order granting summary judgment that had been prepared by Caltrans' counsel.
Caltrans filed and served a notice of entry of the January 22, 2018 order in March 2018. In April 2018, plaintiffs filed a notice of appeal. In July 2018, based on the absence of an actual judgment, this court issued an order directing plaintiffs to file a letter brief setting forth the jurisdictional basis for the appeal. In August 2018, the trial court filed a judgment prepared by plaintiffs' counsel. In September 2018, we issued an order deeming this appeal timely taken from the judgment and directed the appeal to proceed.
DISCUSSION
I. BASIC LEGAL PRINCIPLES
A. Liability for a Dangerous Condition of Public Property
The Government Claims Act (§ 810 et seq.) is a comprehensive statute that defines the liabilities and immunities of public entities and public employees for torts. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1104-1105.) One type of liability is for injuries caused by a dangerous condition of public property.
1. General Principle Defining Liability
Section 835 provides that 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 either (1) a negligent act or omission of a public employee within the scope of his or her employment created the dangerous condition or (2) the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures. (Cornette, supra, 26 Cal.4th at p. 68.) For instance, "[t]he state's failure to erect median barriers to prevent cross-median accidents may result in such liability." (Ibid.)
2. Design Immunity
A public entity may avoid liability for injuries caused by a dangerous condition by asserting the affirmative defense of design immunity. (§ 830.6.) To obtain the protection of the design immunity affirmative defense, the public entity "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." (Cornette, supra, 26 Cal.4th at pp. 66, 69.) In accordance with section 830.6, the third element of design immunity must be tried by the court, not the jury. (Cornette, supra, at p. 66.)
Section 830.6 provides in part: "Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor...."
"The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design." (Cornette, supra, 26 Cal.4th at p. 70.) Allowing a reexamination of particular discretionary decisions where reasonable men may differ as to the outcome creates a danger of interference with the decision-making of public officials charged with the responsibility of making such decisions. (Ibid.)
3. Loss of Design Immunity
"Design immunity does not necessarily continue in perpetuity." (Cornette, supra, 26 Cal.4th at p. 66.) The idea underlying the loss of design immunity is that public entities cannot shut their eyes to the operation of a plan or design once it has been transferred from a blueprint to public land. (Id. at p. 71.)
a. Plaintiff's Burden
A plaintiff proves the loss of design immunity by establishing "(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." (Cornette, supra, 26 Cal.4th at p. 66, italics added.) Unlike the third element of the design immunity affirmative defense, the elements that determine whether a public entity has lost its design immunity are not tried by the court. Instead, "where triable issues of material fact are presented, ... a plaintiff has a right to a jury trial as to the issues involved in the loss of design immunity." (Id. at p. 67.)
In Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802 (Mirzada), the court addressed how the loss of design immunity is handled in two procedural contexts—trial and summary judgment. "At trial, after a defendant has shown the applicability of the design immunity to the plaintiff's claims, the plaintiff bears the burden of establishing each of the three elements of the loss of the immunity." (Id. at p. 806.) The court addressed the summary judgment procedure by stating:
"Consistent with their burden at trial of establishing the elements of Caltrans's loss of the design immunity, plaintiffs 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], plaintiffs needed to make a prima facie showing of the existence of a triable issue of fact with respect to each of those elements to overcome Caltrans's motion for summary judgment." (Id. at pp. 806-807.)
Accordingly, the court in Mirzada explicitly rejected the argument that Caltrans "bore the burden of establishing there were no triable issues of material fact relating to the loss of the design immunity." (Mirzada, supra, 111 Cal.App.4th at p. 807.) To summarize, once Caltrans' moving papers established the existence of the design immunity affirmative defense, plaintiffs had the burden of producing "evidence establishing a triable issue of material fact concerning whether Caltrans lost the design immunity." (Ibid.)
B. Standard of Review
The standard of review and most of the principles governing appellate review of an order granting summary judgment are well-established. Consequently, we simply confirm, without citation to authority, that our review of the summary judgment is de novo and we conduct the same three-step analysis of the moving and opposition papers that applied in the trial court.
To resolve this appeal, we need not address the parties' dispute about how the first step of the summary judgment analysis (identifying the issues framed by the pleadings) applies to the possible loss of Caltrans' design immunity. We assume without deciding that plaintiffs are allowed to challenge Caltrans' design immunity affirmative defense by demonstrating that immunity was lost due to changed physical conditions. II. REASONABLE TIME TO OBTAIN FUNDING AND TO INSTALL BARRIER
A. The Third Element
The third element for the loss of design immunity requires a plaintiff to establish "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." (Cornette, supra, 26 Cal.4th at p. 66.) A secondary authority addresses this element by stating:
"Only one case has construed the third element required to establish loss of design immunity under Cornette v. Department of Transp. (2001) 26 C4th 63, 71, i.e., a reasonable time to obtain funds for the necessary remedial work, or no reasonable attempt to provide adequate warnings of the dangerous condition. See Laabs v. City of Victorville (2008) 163 CA4th 1242, 1268 (no expert testimony provided on issue of warning signs or whether defendant had reasonable time to raise funds and implement remedial work suggested)." (California Government Tort Liability Practice (Cont.Ed.Bar 4th ed. 2020) § 12.74D, p. 12-106.)
B. Plaintiffs' Assertion of Facts and Supporting Evidence
1. Separate Statement
Plaintiffs' separate statement included additional material facts addressing the three elements that must be shown to establish the loss of design immunity due to changed physical conditions. The fifth numbered paragraph of these additional facts asserted: "Caltrans had the information regarding these five crashes in 2010 since the latest of these crashes was March 25, 2010. That gave Caltrans enough time to place a cable barrier (like the one it eventually did place) prior to the November 17, 2012 crash that is the subject of this lawsuit."
As evidence, plaintiff cited paragraph five of Ruzak's declaration, paragraph 30 of Nystrom's declaration and paragraph five of Jeffrey Chin's declaration. The foregoing assertion of additional facts appears to be the only assertion plaintiffs made to address the third element for the loss of design immunity.
2. Evidence Presented
Chin is a licensed civil engineer and has been employed by Caltrans since 2001. His job includes performing traffic safety investigations and preparing conceptual reports for projects proposed at locations identified by Caltrans' MCMCM program. Paragraph 5 of Chin's declaration states (1) he reviewed the MCMCM reports attached as Exhibit 20 to Caltrans' motion for summary judgment, (2) the reports show that as part of the 2011 monitoring cycle, the segment of I-5 from postmile 12.87 to postmile 13.80 triggered a mandatory investigation, and (3) within that freeway segment, the initial HQ report noted cross-median collisions in 2006 at postmile 13.19, in 2007 at postmile 13.80, in 2009 at postmile 11.02, and in 2010 at postmile 12.87. Paragraph 6 of Chin's declaration states an investigation was performed and reported to headquarters that the location from postmile 12.87 to postmile 13.80 met " 'the Cross Median Collisions Study Warrant (Total) for a median barrier and ha[s] a cross-median collision rate of 0.22 (factal acc./mi/year) and 0.65 (total acc./mi/yr).' "
Paragraph 30 of Nystrom's declaration summarizes six cross-median collisions that occurred from postmile 10.89 to postmile 14.87 between January 1, 2005 and July 31, 2015. Besides the collisions identified by Chin, Nystrom noted collisions on July 27, 2008 at postmile 13.70 and on May 27, 2013 at postmile 14.57.
The foregoing collisions data in the declarations of Chin and Nystrom were referenced in Ruzak's declaration. In paragraph 5 of his declaration, Ruzak states that "Caltrans had the information regarding these crashes (besides the 2013 one) in 2010 since the latest of these crashes was March 25, 2010. That gave Caltrans enough time to place a cable barrier (like the one it eventually did place) prior to the November 17, 2012 crash that is the subject of this lawsuit." The time between the two crashes was two years, seven months and 23 days, or a total of 968 days. Therefore, Ruzak's statement implies the barrier could have been completed at least one day before plaintiffs' November 17, 2012 collision—that is, in 967 days or less after the March 25, 2010 collision.
Ruzak's opinion about "enough time" to place a cable barrier at the collision site is not supported with factual details about the steps taken from Caltrans' identification of median problems to its completion of a median barrier. For instance, Ruzak does not describe (1) the process Caltrans uses to identify a median problem and how much time that process reasonably should have taken to identify the collision site as a problem; (2) the process of design and design approval and the amount of time reasonably necessary to obtain an approved design; (3) the budgetary and funding process applied to an approved design and the time reasonable needed to complete that process; and (4) how long was reasonably necessary to install the barrier. Here, the record contains information (Caltrans' internal documents) about the process Caltrans actually used to complete a cable barrier in 2017 and Ruzak did not identify any delays in that process he considered unreasonable.
C. Plaintiffs Failed to Carry Burden
Caltrans does not lose its immunity if it remedies the dangerous condition within a reasonable time or, if unable to remedy the dangerous condition due to practical impossibility or lack of funds, reasonably attempts to provide adequate warnings. (Cornette, supra, 26 Cal.4th at p. 66.)
1. Adequate Warnings
First, we consider the alternative that Caltrans could have addressed the alleged dangerous condition by providing adequate warnings. Plaintiffs' expert asserted, and their separate statement reiterated, that "Caltrans [had] enough time to place a cable barrier ... prior to the November 17, 2012 crash." Plaintiffs' separate statement and supporting evidence did not address whether Caltrans reasonably could have attempted to provide adequate warnings of the absence of a median barrier on the relevant stretch of I-5. As a result, plaintiffs' moving papers and evidence did not address whether the absence of a median barrier on a relatively flat stretch of freeway is the type of danger that can be reduced by providing warnings. Stated another way, the issue of whether warnings would be "adequate"—that is, would have been effective in reducing accidents—was not addressed.
The omission of evidence addressing the effectiveness of warnings cannot be regarded as insignificant because, on the record before this court, their effectiveness cannot be regarded as self-evident or obvious. Instead, the record supports the opposite conclusion. Nystrom's declaration describes six cross-median incidents that occurred between postmile 10.89 and 14.87 between January 1, 2005 to July 31, 2015. Those descriptions of how the incident happened do not reasonably support the inference that warning signs would have prevented collisions. For instance, the July 27, 2008 collision at postmile 13.70 occurred when a truck's tire ruptured, a tire ring came loose, and the tire ring crossed the median and struck a southbound vehicle. It is not reasonable to infer that a warning about the absence of a median barrier would have prevented the truck's tire from rupturing and the chain of events that followed. (See Code Civ. Proc., § 437c, subd. (c) [inferences from the evidence].) The February 9, 2009 cross-median collision at postmile 11.02 was attributed to the northbound driver being distracted while fumbling with a ringing cell phone. If a driver is not willing to abide by the provisions of the California Wireless Telephone Automobile Safety Act of 2006, it is not reasonable to infer that a warning about the absence of a median barrier would have prevented the driver from being distracted by, and fumbling with, a ringing cell phone and, thus, would have prevented the ensuing collision.
The Legislature's findings for the act acknowledged the "growing public concern regarding the safety implications of the widespread practice of using hand-held wireless telephones while operating motor vehicles" and stated it was in the best interests of the health and welfare of California's citizens to have one statewide law establishing the safety guidelines for use of wireless telephone while operating a motor vehicle. (Stats. 2006, ch. 290, §§ 1, 2, subds. (d), (e), 4.)
The appellants' reply brief includes a heading that contends Caltrans could have installed a cable median barrier or provided adequate warnings of the dangerous condition within a reasonable amount of time, but failed to do so. The only sentence under this heading that addresses warnings states: "There is no evidence [Caltrans] placed any warning signs or temporary barriers anywhere near the segment of the roadway that triggered the investigation after [Caltrans] was on notice." This argument about the lack of evidence of warnings signs misses the question of whether warnings would be effective. Thus, the argument does not undermine our conclusion that plaintiffs have not demonstrated the existence of a triable issue of fact about whether Caltrans could have "reasonably attempt[ed] to provide adequate warnings" (Cornette, supra, 26 Cal.4th at p. 71) about the absence of a median barrier.
2. Available Funds and Reasonable Time
Second, we consider the alternative that Caltrans could have addressed the alleged dangerous condition by remedying the danger—specifically, installing a cable median barrier like the one eventually installed in 2017. To meet their burden as to this alternative, plaintiffs must show there is a triable issue about whether, after notice that the absence of a median barrier was a dangerous condition, Caltrans has a reasonable time to obtain funding and carry out the remedial work of designing and installing the median barrier. (Mirzada, supra, 111 Cal.App.4th at pp. 806-807.)
Plaintiffs contend Caltrans had information regarding five cross-median collisions, in the area of the November 17, 2012 collision, when the March 25, 2010 collision occurred. Comparing that date to the date of plaintiffs' collision, plaintiffs (1) assert Caltrans had over 2.5 years to install a cable barrier and (2) contend this amount of time constituted sufficient notice to complete the installation. Plaintiffs argue that, "[i]f the subject median barrier were placed when it should have been in 2010 or 2011, it would have extended to the scene of the subject crash." The only evidence supporting this contention about there being sufficient time to install the cable barrier is Ruzak's opinion that Caltrans had "enough time to place a cable barrier (like the one it eventually did place) prior to the November 17, 2012 crash that is the subject of this lawsuit."
When opposing a motion for summary judgment, the opinions express in an expert's declaration must not be speculative or lack foundation and they must be stated with sufficient certainty. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.) It is sufficient, if an expert declaration establishes (1) the matters relied upon in expressing the opinion, (2) those matters are of a type reasonably relied upon in reaching that opinion, and (3) the bases for the opinion. (Ibid.) In contrast, an expert's opinion "may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based." (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.) An example of insufficiency is "a conclusory expert declaration which states the opinion that no malpractice has occurred, but does not explain the basis for the opinion." (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 521.)
Here, Ruzak's opinion that Caltrans had enough time to install the cable barrier at the location of plaintiffs' collision is insufficient to create a triable issue about whether Caltrans acted within a reasonable amount of time because there is no reasoned explanation about the availability of funding for the cable barrier. Instead, Ruzak appears to have made assumptions of fact that the design of an appropriate barrier and adequate funding were available soon enough to allow the construction of the barrier to be completed before November 17, 2012). There is no evidentiary support in the record for those assumptions.
During oral argument, plaintiff's counsel was asked whether Ruzak's opinion that there was enough time to install the cable barrier was sufficient to create a triable issue of fact about whether Caltrans had a reasonable time to remedy the changed conditions prior to plaintiffs' collision. Counsel responded that Ruzak had worked for Caltrans, was familiar with its budgetary processes, and Ruzak could have provided further details about those processes. Counsel also stated the court could take judicial notice of the fact the State of California was not bankrupt from 2010 through 2012 and the availability of funding is supported by evidence showing the cable barrier was later installed. Plaintiff suggests Ruzak's opinion and the inferences drawn from the other evidence in the record is sufficient to create a triable issue on the reasonable time element.
Our analysis of the other evidence relevant to the time it takes Caltrans to identify a median problem, design an appropriate barrier, budget for the expense of installing the barrier, and completing the barrier's construction leads us to conclude that it is not reasonable to infer there was a reasonable amount of time prior to the November 17, 2012 collision to have the median barrier constructed.
For instance, the amount of time that passed between the issuance of the December 26, 2012 cover memo to the 2011 MCMCM report, which report triggered a mandatory investigation, and the completion of the cable barrier median is at least four years and seven days. We have used January 1, 2017, as the completion date because the record shows the installation of the cable barrier was completed sometime in 2017. If we assume (1) the process set in motion by the December 26, 2012 memo should have been started on the day of the March 25, 2010 collision and (2) Caltrans acted reasonably during the design, funding and construction process, then the cable median barrier would have been installed no sooner than April 1, 2014. Under this scenario, the barrier would not have been completed by the time of plaintiffs' November 17, 2012 collision.
An alternate scenario uses November 5, 2013, instead of December 26, 2012, as the start date. November 5, 2013 is when Caltrans' District 6's deputy district director signed a "PROJECT PROPOSAL FORM [¶] 'Conceptual Report' " recommending the installation of 11.5 miles of cable barrier in I-5's median. This alternate start date eliminates (1) the time District 6 spent investigating the segment of I-5 referenced in the 2011 MCMCM and formulating a recommendation for a cable barrier; (2) the time elapsed before HQ Office of Performance approved the recommendation; and (3) the time District 6 spent preparing the project proposal form. From November 5, 2013, until January 1, 2017, is three years, one month and 28 days. Thus, even if the project proposal form had been issued on the day of the March 25, 2010 collision, the cable barrier would not have been installed before plaintiffs' collision on November 17, 2012. It still would have been six months too late.
Without some evidence of Caltrans dawdling during the identification-design-funding-construction process, it cannot be reasonably inferred that the two years and seven months between the March 25, 2010 collision and plaintiffs' November 17, 2012 collision was a reasonable time for Caltrans to obtain funding and carry out the remedial work of designing and installing the median barrier. (See Mirzada, supra, 111 Cal.App.4th at pp. 806-807.)
Because plaintiffs did not meet their burden of producing evidence sufficient to show that there was a triable issue of material fact on whether Caltrans had a reasonable time to design an appropriate barrier, obtain the funds, and carry out the installation of a median barrier, we conclude plaintiffs failed to show there was a triable issue of material fact on whether Caltrans lost its design immunity. Thus, the trial court correctly granted the summary judgment motion. Accordingly, we need not reach Caltrans' other arguments for affirmance.
DISPOSITION
The judgment is affirmed. Caltrans shall recover its costs on appeal.
FRANSON, Acting P.J. WE CONCUR: SMITH, J. MEEHAN, J.