Opinion
H041762
12-26-2017
CAROLINA CAMACHO, Individually and as Successor, etc., Plaintiff and Appellant, v. CITY OF SAN JOSE, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 112CV237410)
Plaintiff Carolina Camacho appeals a summary judgment in favor of the City of San Jose in this wrongful death action. Camacho alleges her daughter's death in a pedestrian-motor vehicle accident was due to a dangerous condition of public property: the City's failure to install a barrier fence on the median where the accident occurred to prevent pedestrians from crossing there. (Gov. Code, § 835.) The City moved for summary judgment, challenging three elements of Plaintiff's cause of action. The City also argued it had a complete defense based on design immunity. (Gov. Code, § 830.6) The trial court found that the City had met its burden of demonstrating that there was no dangerous condition as a matter of law and granted the motion for summary judgment.
On appeal, Plaintiff challenges two aspects of the City's design immunity defense. First, she argues the City failed to establish the causal relationship element of the defense. Second, she asserts that even if the City was once entitled to design immunity, it lost its design immunity based on changed physical conditions at the accident site. In addition, Plaintiff argues that the trial court erred when it found she could not establish the dangerous condition element of her claim. Finally, Plaintiff asserts the trial court erroneously admitted 19 of the City's exhibits.
As for Plaintiff's evidentiary objections, we conclude Plaintiff waived her objections below by failing to make them in a separate document as required by the Rules of Court. In addition, after dividing Plaintiff's objections into three categories, we conclude they have been forfeited on appeal because (1) Plaintiff did not object to the evidence below; (2) Plaintiff objected below on grounds other than the grounds asserted on appeal; or (3) Plaintiff has failed to adequately brief the objections on appeal.
As for the merits of the appeal, we conclude the City established it was entitled to summary judgment based on its design immunity defense. We reject Plaintiff's challenge to the causal relationship element of the defense and conclude Plaintiff's evidence does not create a triable issue as to the loss of design immunity. In light of our conclusions, we do not reach Plaintiff's arguments regarding the dangerous condition element of her claim. We will therefore affirm the summary judgment.
FACTS
At approximately 8:00 p.m. on November 5, 2011, Plaintiff's 20-year-old daughter Jessenia Camacho-Torres left their apartment on Branham Lane (Branham) in San Jose to go shopping. Camacho-Torres was on foot. It was dark and raining. The portion of Branham where Camacho-Torres lived is 120 feet wide, with three lanes of traffic in each direction, separated by a median island. The speed limit is 40 miles per hour. Camacho-Torres walked from her apartment complex, across the westbound lanes of Branham to the median. As she walked across the eastbound traffic lanes on Branham, she was struck in the number two lane by a 2004 Honda Civic.
The driver pulled over immediately. She called out to Camacho-Torres, who was lying in the street. Camacho-Torres did not respond. The driver called 911 and reported the accident. She later told police she was driving eastbound, in the middle lane at 25 to 30 miles per hour. It was raining; she had her headlights and windshield wipers on. She was "driving normally," looking straight ahead. All of a sudden Camacho-Torres appeared "out of nowhere" in her lane. Camacho-Torres did not look at the car and the driver did not see Camacho-Torres's face. The driver told the officers she was driving under the speed limit because it was dark. She told the 911 operator it was "super dark." The left front of the Honda struck Camacho-Torres. The impact shattered the glass and dented the metal frame on the left side of the Honda's windshield.
In her responses to requests for admission, the Honda driver admitted her speed was 25 to 35 miles per hour. The City's accident reconstruction expert estimated her impact speed at 27 to 33 miles per hour, and Plaintiff's accident reconstruction expert estimated it at 27 to 43 miles per hour.
As Camacho-Torres lay on the street, she was run over by a 2010 Mazda 3. The driver of the Mazda was traveling eastbound on Branham in the number two lane at 35 to 40 miles per hour. Before the impact, the Mazda driver saw three people on the median to her left, jumping up and down, waving their arms, and trying to get her attention. She then saw something "elongated" on the ground in her lane. She was not sure what it was. She applied her brakes and attempted to stop, but drove over Camacho-Torres's body. (Later, the driver told the police she was inches away from the body when she first saw it and did not have time to brake.) The Mazda driver pulled over immediately and called 911. She told the 911 operator it was "pitch dark" when she saw something in the middle lane and ran over it.
Camacho-Torres suffered major head injuries and was pronounced dead at the scene. Plaintiff's experts opined that she did not survive the first impact.
The impacts occurred at or near the intersection of Branham and Eagle Lake Drive (Eagle Lake). There were no crosswalks, signal lights, or other traffic controls at that intersection. The experts described the intersection of Branham and Eagle Lake as a "three-legged" intersection. Traffic on Eagle Lake runs north and south. At its northern-most end, Eagle Lake intersects with the eastbound traffic lanes on Branham. Northbound traffic on Eagle Lake can only turn right onto eastbound Branham; because of the median, it is impossible to turn left onto westbound Branham.
Branham is several miles long. Plaintiff presented evidence regarding the portion of Branham between Almaden Expressway (Almaden) and Pearl Avenue (Pearl). That portion of Branham is 0.6 miles long, with signal lights and marked crosswalks at the intersections at Branham and Almaden and Branham and Pearl. The intersection of Branham and Pearl is one block west of Camacho-Torres's apartment. The average number of vehicles traveling on Branham in 2004 was 22,180 vehicles per day.
The median island at the intersection of Branham and Eagle Lake is 13 to 14 feet wide. It is planted with 17 large- and medium-sized trees and set off by a raised concrete curb.
The investigating officer checked the Honda driver's cell phone and determined that she was not using her phone at the time of the accident. The City presented evidence that Camacho-Torres was probably using her cell phone at the time of the first collision. Camacho-Torres was wearing dark, non-reflective clothing and "may have had a hood up over her head due to the rain." Plaintiff's experts opined that Camacho-Torres was walking in a south-easterly direction across Branham, from the driveway on the west side of her apartment complex to the eastern corner of the intersection of Branham and Eagle Lake. In that case, she was crossing Branham at a diagonal, not a 90-degree angle, with her back to oncoming traffic.
The Honda driver called 911 at 8:02 p.m. According to Camacho-Torres's cell phone records, she made two calls at 8:00 p.m. and 8:01:46 p.m. respectively. The first call was one minute 13 seconds long; the second call was 18 seconds long, with a 23-second break between calls. The second call ended at 8:02:04 p.m. Camacho-Torres received a call of two seconds' duration at 8:03 p.m.
None of the people involved in the collisions had consumed any alcohol; there was no evidence that any of them was under the influence of any drug.
PROCEDURAL HISTORY
I. Pleadings
In December 2012, Plaintiff filed a complaint against the two drivers and the City. The complaint alleged three causes of action: (1) wrongful death against all defendants, (2) general negligence against the drivers, and (3) "Negligence Per Se/Violation of Statute" against the City only.
The two causes of action against the City contained identical factual allegations. Although titled differently, they were based on the same theory of liability: a dangerous condition of public property (Gov. Code, §§ 830, 835; undesignated statutory references are to the Government Code). Plaintiff alleged that none of the streetlights on Branham between Almaden and Pearl was working, which caused that entire stretch of road to be dangerously dark and a danger to human life. (Plaintiff's evidence in opposition to the summary judgment motion demonstrated half of the lights along this portion of Branham were inoperable twenty months after the accident.) Plaintiff alleged the City failed to service and replace inoperable streetlights and failed to take reasonable measures to ensure traffic safety. Those measures included reducing the speed and number of traffic lanes on Branham, increasing the number of streetlights, maintaining streetlights, installing "center fencing and barriers," and creating crosswalks and other pedestrian safety devices. Plaintiff alleged the inoperable streetlights created "vision obstructions" that affected both drivers and pedestrians and the streetlights were in disrepair for an excessive period of time. She alleged that oversized and overgrown trees on the median obscured the "miniscule" amount of light on the roadway. Plaintiff alleged the City was aware of the dangerous condition and there had been a substantial change in the condition due to increased traffic volume and speed, complaints about the area, and prior accidents, including prior fatal accidents.
In its answer, the City raised a number of affirmative defenses, including the "immunities and defenses afforded by" sections 800 to 1000. The defendants filed cross-complaints against one another. The parties went to mediation, and Plaintiff eventually settled with the two drivers
II. Motion for Summary Judgment
In May 2014, the City filed a motion for summary judgment. The City raised four arguments. First, the City argued Plaintiff could not establish the existence of a dangerous condition as a matter of law based on cases that hold that the failure to provide lighting or traffic controls is not a dangerous condition. Second, the City argued that the alleged dangerous condition was not a proximate cause of Camacho-Torres's death because the accident was caused by a lack of due care and inattention by Camacho-Torres and the drivers. Third, the City argued it had no notice of the alleged dangerous condition since the only complaints it received about the intersection of Branham and Eagle Lake involved slow traffic caused by vehicles entering and leaving a school on north side of Branham and inadequate parking for the apartments north of the median. (The accident occurred on the south side of the median.) If the City met its initial burden on any one of these elements, the burden shifted to Plaintiff to demonstrate a triable issue of material fact as to that element. (Code Civ. Proc., § 437c, subd. (o)(1); Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 (Saelzler).) Fourth, the City argued it was immune from liability under section 830.6 because decisions regarding the design, type, and location of the traffic signals, lighting, marked crosswalks, and the center median were made pursuant to accepted principles of traffic design and were approved by City engineers who had authority to approve such designs.
III. Opposition to Motion for Summary Judgment
In opposition to the motion, Plaintiff argued her wrongful death action was meritorious because the evidence established both a dangerous condition and causation. She argued "numerous factual issues exist" which required the court to deny the motion, but she did not clearly state what those disputed material facts were. Plaintiff also narrowed the scope of her pleadings. She told the court the dangerous condition was not the absence of street lights or the failure to provide a crosswalk or other safety measures at the intersection of Branham and Eagle Lake. She argued the dangerous condition was the failure "to install a center median barrier fence which would have prevented pedestrians from crossing here." (Bold and underscoring omitted.)
Regarding notice, Plaintiff argued the City was on notice of the dangerous condition because there was one prior fatal pedestrian-motor vehicle accident near the intersection of Branham and Eagle Lake in December 2007, approximately four years before Camacho-Torres's accident. Plaintiff's expert opined that this single accident was sufficient to require the City to conduct a traffic study at this location. Plaintiff argued evidence of a prior pedestrian-motor vehicle accident one block away at Branham and Glenmont Drive (Glenmont) in August 2011 provided notice that the street lights were not working. In addition, Plaintiff relied on the accident history of the entire 0.6-mile segment of Branham between Almaden and Pearl for the period January 2005 to the date of Camacho-Torres's accident in November 2011.
As for design immunity, Plaintiff argued the defense is not a "perpetual everlasting shield" and that she could establish the three elements necessary to show a loss of design immunity: (1) a change in physical condition, (2) the City had actual or constructive knowledge of the change, and (3) the City had reasonable time to obtain funds and repair. Plaintiff argued the changed conditions included the burnt out street lights; increased traffic flow and traffic accidents; the absence of a barrier fence on the median; a parking scarcity problem on the north side of Branham; a vertical drop in grade on Branham between Glenmont and Eagle Lake; and overgrown trees on the median, which created deceptive visibility for both pedestrians and drivers. Plaintiff argued the City had both actual and constructive notice of the changed conditions.
IV. Order Granting Summary Judgment
The trial court granted the motion for summary judgment. The court found that the City had "met its initial burden of showing that the property is not in a dangerous condition as a matter of law." The court observed that the primary basis for Plaintiff's dangerous condition of public property claim was the alleged insufficiency of the street lighting and that Plaintiff also alleged a failure to provide traffic controls, signage, or roadway markings. The court found the City had provided persuasive legal authority that a dangerous condition claim cannot be based on either allegation. The court noted that Plaintiff had abandoned a significant portion of her allegations, and had declared that her claim was based on the City's failure to install a barrier fence. Since Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 442-443 (Brenner) rejected this theory, the court found Plaintiff was unable to establish the existence of a dangerous condition as a matter of law.
DISCUSSION
I. General Principles Regarding Summary Judgment Motions
A trial court properly grants a motion for summary judgment when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c; Ennabe v. Manosa (2014) 58 Cal.4th 697, 705 (Ennabe).) A triable issue of fact exists 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." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar), fn. omitted.)
A defendant moving for summary judgment must show either: (1) the plaintiff has not established, and cannot reasonably expect to establish, one or more elements of the cause of action, or (2) there is a complete defense to that cause of action. (§ 437c, subds. (o), (p)(2); Ennabe, supra, 58 Cal.4th p. 705; State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018.) "Support for the motion must take the form of evidence, including affidavits, declarations, admissions, and depositions. (. . . § 437c, subd. (b).) Once the defendant makes this initial showing, the burden shifts to the plaintiff to set forth "specific facts" beyond the pleadings that show a triable issue of one or more material facts as to the cause of action or defense. (. . . § 437c, subd. (p)(2).)" (Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1449 (Pipitone).)
The party moving for summary judgment "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he [or she] carries his [or her] burden of production, he [or she] causes a shift, and the opposing party is then subjected to a burden of production of his [or her] own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.) The object of the summary judgment procedure is "to cut through the parties' pleadings" to determine whether trial is necessary to resolve their dispute. (Id. at p. 843.)
II. Standard of Review
We review an order granting summary judgment de novo. (Lonicki v. Sutter Health (2008) 43 Cal.4th 201, 206; Aguilar, supra, 25 Cal.4th at p. 860.) In doing so, we "consider[] all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
"In undertaking our independent review, we apply the same three-step analysis used by the trial court. First, we identify the issues framed by the pleadings. Second, we determine whether the moving party has established facts that justify judgment in its favor. Finally, in most cases, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable issue of material fact." (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858-859.) Although we apply the same analysis as the trial court, we independently determine the construction and effect of the facts presented to the trial court as a matter of law. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1515; Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 24.) We view the evidence in a light favorable to the losing party (Plaintiff), liberally construing that party's evidentiary submission while strictly scrutinizing the moving party's own showing and resolving any evidentiary doubts or ambiguities in the losing party's favor. (Saelzler, supra, 25 Cal.4th at pp. 768-769.)
On appeal, the appellant has the burden of showing error, even if the appellant did not bear the burden in the trial court, and " 'to point out the triable issues the appellant claims are present by citation to the record and any supporting authority.' " (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 230.) We "affirm the judgment of the trial court if it is correct on any theory of law applicable to the case, including but not limited to the theory adopted by the trial court . . . [and] so long as any of the grounds urged by [defendant], either here or in the trial court, entitles it to summary judgment." (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.) We need not defer to the trial court, and we are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale. (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
III. Objections to the City's Evidence
Plaintiff argues the trial court "erroneously admitted evidence which prevented Plaintiff from presenting evidence important to her cause of action for dangerous condition of public property." She then lists 19 pieces of evidence the City submitted with its moving papers, with brief argument as to why each was inadmissible. Despite the express wording of her argument heading, Plaintiff does not contend that the court excluded any of her evidence or explain how the admission of the City's evidence prevented her from presenting her own evidence.
Although Plaintiff numbers her objections 1 through 12 in her appellate brief, she objects to 19 separate pieces of evidence: 13 witness declarations, the Honda driver's responses to requests for admission, the Mazda driver's answers to interrogatories, and the transcripts of the 911 calls and the three police interviews.
The City responds that Plaintiff waived her evidentiary objections by failing to make them in the proper format in the trial court. The City asserts Plaintiff's written objections below were improper because (1) Plaintiff made them in her separate statement and not in a separate document as required by Rules of Court, and (2) Plaintiff failed to file a proposed order on her written objections as required by the Rules of Court. The City argues that since Plaintiff failed to comply with these requirements, the trial court did not abuse its discretion when it disregarded her objections.
Plaintiff has not filed a reply brief and therefore has not responded to the City's waiver argument.
A. Standard of Review for Evidentiary Objections in Summary Judgment Motions
"In determining whether a triable issue was raised or dispelled, we must disregard any evidence to which a sound objection was made in the trial court, but must consider any evidence to which no objection, or an unsound objection, was made. [Citations.] Such evidentiary questions, however, are subject to the overarching principle that the [moving party's] submissions are scrutinized strictly, while the opponent's are viewed liberally." (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 957.)
The City argues the standard of review for any ruling by the trial court on the admissibility of evidence is abuse of discretion. Plaintiff does not address the standard of review for the trial court's ruling on evidentiary objections in a summary judgment appeal.
In Reid v. Google, Inc. (2010) 50 Cal.4th 512, 516 (Reid), the California Supreme Court addressed the question whether the trial court's failure to rule on a party's evidentiary objections in a summary judgment motion, as occurred here, waives the objections for appeal. The Reid court held that when "the trial court fails to rule expressly on specific evidentiary objections, it is presumed that the objections have been overruled, the trial court considered the evidence in ruling on the merits of the summary judgment motion, and the objections are preserved on appeal." (Id. at p. 534.) The Supreme Court rejected Google's contention that "there is no distinction between waived objections and those presumptively overruled," and explained that "waived objections will not be considered on appeal [citation], while presumptively overruled objections can still be raised on appeal, with the burden on the objector to renew the objections in the appellate court." (Ibid).
The Supreme Court also addressed the standard of review applicable to a trial court's order on evidentiary objections in a summary judgment motion. (Reid, supra, 50 Cal.4th at pp. 534-535.) In Reid, the parties disagreed about the appropriate standard of review: Google advocated the abuse of discretion standard; Reid and amici curiae argued for a de novo standard. The Supreme Court observed that in applying a de novo standard, this court had stated, " 'Because summary judgment is decided entirely on the papers, and presents only a question of law, it affords very few occasions, if any, for truly discretionary rulings on questions of evidence. Nor is the trial court often, if ever, in a better position than a reviewing court to weigh the discretionary factors.' " (Id. at p. 535.)
The Supreme Court held that "application of a de novo review standard was appropriate under the particular circumstances [in Reid] but refrained from deciding 'generally' which standard of review applies to a trial court's rulings on evidentiary objections based only on the papers in summary judgment proceedings." (Pipitone, supra, 244 Cal.App.4th at p. 1451, citing Reid, supra, 50 Cal.4th at p. 535.) The Reid court reasoned: "First, because there was no exercise of trial court discretion, the Court of Appeal had no occasion to determine whether the trial court abused it. Second, Google expressly invited the Court of Appeal to address its evidentiary objections, which the Court of Appeal reviewed de novo, consistent with the general standard of review applicable to summary judgment rulings, that any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion. [Citation.]" (Reid, at p. 535.) The court concluded it "need not decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo." (Ibid.)
Since the trial court did not rule on Plaintiff's evidentiary objections and Plaintiff has invited us to address her objections, we conclude this case is like Reid and the de novo review standard applies. We next consider whether principles of forfeiture or waiver limit the scope of our review of Plaintiff's evidentiary objections.
B. Legal Principles Regarding Forfeiture of Objections to Evidence in Motions for Summary Judgment
Generally, trial court error is waived or forfeited by implication when the appellant fails to make a required objection in the trial court. "An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with the relief sought . . . , where an objection could have been but was not presented to the trial court . . . ." (In re Carrie W. (2003) 110 Cal.App.4th 746, 755, internal quotes and brackets omitted.)
In addition to this general rule, the statutory scheme for summary judgment motions expressly provides that objections to evidence in support of or in opposition to a motion for summary judgment that are "not made at the hearing shall be deemed waived." (§ 437c, subd. (b)(5), italics added.) The statute also provides that objections based on the failure of affidavits or declarations to (1) be made on personal knowledge; (2) set forth admissible evidence; or (3) show affirmatively that the affiant is competent to testify to the matters stated therein "shall be deemed waived" if not made at the hearing. (§ 473c, subd. (d).) Thus, objections to evidence must be made in the trial court to avoid waiver. (Reid, supra, 50 Cal.4th at p. 531.) "[W]ritten evidentiary objections made before the hearing, as well as oral objections made at the hearing are deemed made 'at the hearing' under section 437c, subdivisions (b)(5) and (d), so that either method of objection avoids waiver.' " (Reid, supra, 50 Cal.4th at pp. 531-532.) Plaintiff attempted to object to the City's evidence in support of its summary judgment motion in writing before the hearing. She did not make any oral objections at the hearing. We will therefore examine the adequacy of Plaintiff's written objections in the trial court.
California Rules of Court, rule 3.1354 (undesignated rules citations are to the California Rules of Court) sets forth the requirements for written evidentiary objections in summary judgment proceedings. It provides that written objections "must be served and filed at the same time as the objecting party's opposition or reply papers . . . ." (Rule 3.1354(a).) The rule also prescribes the format for written objections. It provides: "All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must: [¶] (1) Identify the name of the document in which the specific material objected to is located; (2) State the exhibit, title, page, and line number of the material objected to; [¶] (3) Quote or set forth the objectionable statement or material; and [¶] (4) State the grounds for each objection to that statement or material." (Rule 3.1354(b).) Rule 3.1354(b) provides that written objections to evidence must be made in one of two formats and contains examples of each format. Finally, the rule requires the objecting party to provide the court with a proposed order on the objections in one of two specified formats and contains examples of each format. (Rule 3.1354(c).)
"An objection to evidence must generally be preserved by specific objection at the time the evidence is introduced; the opponent cannot make a 'placeholder' objection stating general or incorrect grounds . . . and revise the objection later . . . stating specific or different grounds." (People v. Demetrulias (2006) 39 Cal.4th 1, 22 (Demetrulias); see id. at pp. 21-22 [objections that testimony lacked foundation, was speculative, or was nonresponsive were insufficient to preserve for appeal claim that testimony constituted improper character evidence].) The objecting party should " 'make clear the specific ground of the objection.' " (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 764, fn. 6 (Cole), citing Evid. Code, § 353 subd. (a), see also Cole, at p. 764 [failure to cite statutory basis for or "make a coherent argument in support of the objection should be viewed as an abandonment of that objection"].)
Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8-9 (Hodjat) held that the trial court did not abuse its discretion when it refused to rule on evidentiary objections that were set forth in the plaintiff's separate statement and were not filed separately as required by Rule 3.1354. The court explained, "The rules requiring evidentiary objections to be filed separately and not repeated in the separate statement are to allow the trial court to consider each piece of evidence and all of the objections applicable to that piece of evidence separately. . . . [I]nterposing objections into the separate statement defeats the goal of allowing the trial court to quickly and efficiently determine what particular piece of evidence is admitted and what is not. This is because the separate statement is focused on individual facts, which may be supported by the same or different pieces of evidence. A trial court would be forced to wade through all of the facts in order to rule on a particular piece of evidence." (Hodjat, at p. 9.)
C. Waiver Based on Failure to Comply with Rules of Court
Plaintiff did not file a separate document setting forth her objections to evidence or a proposed order for the court to use in ruling on the objections as required by Rule 3.1354. Instead, she objected in her separate statement. In addition, Plaintiff's objections did not comply with the specificity requirements of Rule 3.1354(b), which required her to (1) identify the name of the document, (2) state the exhibit, title, page, and line number where the material is located, (3) quote or set forth the objectionable material, and (4) state the grounds for each objection. Instead of objecting to specific items of evidence, Plaintiff objected to several of the City's undisputed material facts (UMF), many of which were supported by citations to multiple pieces of evidence. (See e.g., Plaintiff's Separate Statement in Opposition to the City's UMF Nos. 4, 5, 8, and 19.) Thus, it is not clear which pieces of evidence the objections referred to. This is precisely the problem the court identified in Hodjat. (Hodjat, supra, 211 Cal.App.4th at p. 9.) The objections should have been made to specific items of evidence, not facts.
The City's reply included objections to Plaintiff's evidence in opposition to the motion, filed in a separate document. In its order on the motion for summary judgment, the court declined to rule on the City's objections "since they [were] not relevant to the court's ruling." Citing Reid, the court also stated, "All objections are preserved for purposes of appeal, if any." The court's order did not mention Plaintiff's objections, perhaps because they were not filed in the proper format.
Plaintiff argues the trial court "erroneously admitted evidence which prevented [her] from presenting evidence important to her cause of action . . . ." She does not cite any of the legal authority set forth above regarding evidentiary objections in a summary judgment motion. She does not argue the trial court erred when it failed to rule on her objections. Instead, her brief sets forth broad-brush objections to 19 pieces of evidence. This includes at least one objection to every declaration filed by the City.
The City argues Plaintiff waived her objections by making them in her separate statement and failing to comply with the requirements of Rule 3.1354. We agree. Following Hodjat, we conclude the trial court did not err when it failed to consider or rule on Plaintiff's objections since they were not made in a separately-filed document as required by Rule 3.1354(b). (Hodjat, supra, 211 Cal.App.4th at pp. 8-9.)
D. Forfeiture Based on Failure to Raise Objections Below
Even if we were to excuse these procedural defects, we would conclude that most of the objections Plaintiff makes on appeal have been forfeited because she failed to raise them in the trial court. We compared the objections in Plaintiff's separate statement with the objections in her opening brief and concluded that her objections on appeal fall into three categories: (1) objections to evidence to which no objection was made below; (2) objections to evidence that was objected to on different grounds below; and (3) objections based on the same ground raised below.
The first category (objections to evidence to which no objection was made below) includes the transcript of the 911 call; and the declarations of the Mazda driver; the City's attorney Randolph Hom; Police Officers Marc Beretta, Joshua Cote, and Leslie Martin; and the City's Department of Transportation Engineer Noe Veloso. The second category (objections to evidence that was objected to on different grounds below) includes: the Honda driver's responses to requests for admission; the Mazda driver's answers to form interrogatories; the transcripts of the drivers' recorded interviews with police; and the declarations of the Honda driver, human factors expert Robert Post, accident reconstruction expert Rudy Degger, and traffic safety expert Edward Ruzak. Since the objections in categories 1 and 2 were "not made at the hearing"—because Plaintiff either did not object to the material at all or objected on grounds other than those raised on appeal—they "shall be deemed waived" on appeal and we will not consider them further. (§ 437c, subd. (b)(5); Demetrulias, supra, 39 Cal.4th at pp. 21-22 [objection on specified ground insufficient to preserve for appeal objection based on another ground]; Cole, supra, 205 Cal.App.4th at p. 764.)
E. Forfeiture Based on Failure to Adequately Brief Issues on Appeal
The third category (objections based on the same ground raised below) includes portions of the declarations of Jim Bittner, a Senior Civil Engineer in the City's Transportation Department; of Kevin O'Connor, the City's Deputy Director of Infrastructure Maintenance; and of San Jose Police Investigator Eric Dragoo.
Plaintiff describes two factual statements from Bittner's declaration and argues "[t]his statement lacks foundation." (It is not clear whether the argument applies only to the second of the two statements or to both statements.) Similarly, Plaintiff describes a factual statement in O'Connor's declaration and argues "[t]his lacks foundation." Plaintiff objected to this evidence on this ground below.
In many cases, the admissibility or inadmissibility of proffered evidence depends on proof of a preliminary fact. (See Evid. Code, § 400-401 [defining "proffered evidence" and "preliminary fact"]; Heafey, et al., Cal. Trial Objections (Cont.Ed.Bar 2014) Insufficient Foundation, § 21.1, p. 247 (Trial Objections).) "Laying a foundation is the procedure for presenting proof of the existence of the preliminary fact. [¶] 'Proffered evidence' (i.e., proposed evidence) is evidence that requires, before it is admissible, preliminary proof (i.e., a foundation) of the existence or nonexistence of a preliminary fact." (Trial Objections, supra, § 21.1, p. 247, citing Evid. Code, § 401.)
Litigants may be required to prove a preliminary fact (lay a foundation) in several different situations. This includes when the proffered evidence raises questions about its relevance, the personal knowledge of the witness, the authenticity of writing, hearsay, privilege, or identity; or involves opinion testimony, evidence of experiments, admissions made during settlement negotiations, or a witness's competency to testify. (Trial Objections, supra, § 21.1, at pp. 247-248 [citing Evid. Code, § 403] and § 21.8 at pp. 252-253.) An objection that the proffered evidence "lacks foundation" may implicate one or more of these issues. Since the various foundation requirements are so dissimilar, a general objection that the evidence "lacks foundation" without specifying the nature of the preliminary fact at issue is insufficient. (See Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 392, p. 548-549, citing People v. Modell (1956) 143 Cal.App.2d 724, 729 and Parlier Fruit Co. v. Fireman's Fund Ins. Co. (1957) 151 Cal.App.2d 6, 15.)
On appeal, Plaintiff makes a bald assertion that portions of the Bittner and O'Connor declarations "lack[] foundation," but does not brief or explain what the foundation issue is or identify what preliminary facts have not been proven.
One of the most fundamental rules of appellate review is that an appealed judgment or order is presumed to be correct. " 'All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill).) As the appellant, Plaintiff has the burden of overcoming the presumption of correctness. That burden includes providing this court with reasoned argument and citations to authority on each point raised. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 (Niko); Cahill, at p. 956.) When the appellant asserts a point but fails to support it with reasoned argument and citations to authority, the appellate court may treat it as waived or forfeited, and pass it without consideration. (People v. Stanley (1995) 10 Cal.4th 764, 793; see, e.g., Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1001, fn. 2 [contention forfeited where it is "merely asserted without argument or authority"].) "One cannot simply say the court erred, and leave it up to the appellate court to figure out why." (Niko, at p. 368.) This rule applies even when the appellate court reviews the matter de novo, including in summary judgment appeals. Although we review the trial court's decision independently, the scope of our review is limited to those issues that "have been adequately raised and are supported in [the appellant's] brief." (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
Although Plaintiff argues that certain facts in Bittner's and O'Connor's declarations lack foundation, she does not develop that point further. She does not explain what the foundation issues are or identify the preliminary facts. Although these objections were raised below, we conclude they have been forfeited because they have not been adequately briefed on appeal.
Further, although Plaintiff "objects" to Veloso's declaration in her brief on appeal, she fails to state any ground for the objection. She also failed to object to that declaration below. Thus, any objection to Veloso's declaration is doubly waived.
The final piece of evidence Plaintiff objects to is Police Investigator Dragoo's 26-page declaration. On appeal, Plaintiff objects to this declaration on five grounds: (1) hearsay, (2) lack of foundation, (3) speculation, (4) relies on documents that are not authenticated or attached, and (5) Evidence Code section 352. Grounds Nos. 4 and 5 fall into category 2, since they were not raised below. They are therefore deemed waived. (§ 473c, subd. (b)(5), (d).)
Plaintiff argues the "vast bulk" of the statements in Dragoo's 26-page declaration are premised on hearsay and lack foundation. As before, Plaintiff does not develop her foundation claim further, by specifying which of the statements in this lengthy declaration require proof of preliminary facts, or stating what those preliminary facts are. We therefore conclude Plaintiff has also waived her lack of foundation challenge to Dragoo's declaration by failing to adequately brief the issue.
Plaintiff objects to Investigator Dragoo's conclusion that Camacho-Torres was on the phone, talking to her boyfriend, at the time of the accident as speculative. Even if we disregard the procedural defects below and sustain this objection, the fact that Camacho-Torres was on the phone around the time of the first impact would still be before this court because other, more direct evidence—Camacho-Torres's cell phone records, to which Plaintiff has not objected on appeal—shows that she was on the phone around the time of the impact. In our view, it is immaterial who she was speaking with.
As for Plaintiff's hearsay objection, in the trial court, she objected to only two paragraphs in Dragoo's declaration—paragraphs 2 and 32—on the grounds of hearsay. Any hearsay objection to the rest of the declaration is therefore waived.
Paragraph 2 is a half-page summary of the accident facts and paragraph 32 is a three-page summary of Investigator Dragoo's conclusions upon completing his investigation. Rather than develop her hearsay objection with reasoned argument and citations to authority as to why these two paragraphs should have been excluded as hearsay, Plaintiff argues the weight and reliability of evidence Dragoo relied upon. We therefore conclude that this hearsay objection has been waived. Moreover, much of the information in these summary paragraphs is based on other evidence that was properly before the court such that Plaintiff's hearsay objection to Dragoo's declaration is of no consequence.
In summary, Plaintiff's evidentiary objections on appeal have been doubly waived. First, by failing to present the objections in a separate document and to comply with other requirements of the Rules of Court. Even if we overlook the procedural defects and rules violations in Plaintiff's objections to evidence, we would conclude that Plaintiff has waived or forfeited all of the objections she raises on appeal: (1) by failing to object to some items of evidence below, (2) by objecting to other items of evidence below on grounds other than those asserted on appeal, or (3) by failing to develop her objections to the remaining evidence with reasoned argument and citations to authority.
IV. Argument Headings
In addition to her objections to evidence, Plaintiff's opening brief contains the following four argument headings: (1) "The trial court erroneously excluded evidence of [the City] disputing causation as to its design immunity argument"; (2) "The trial court erroneously excluded evidence of plaintiff's negating the [City's] design immunity defense"; (3) "The trial court erroneously excluded evidence of prior accidents to show the existence of a dangerous condition and notice of a dan[g]erous condition"; and (4) "The trial court erroneously excluded evidence of conditions under which the previous fatal accident occurred[,] which was the same and substantially similar to the fatal pedestrian accident involving . . . [Camacho-Torres] so as to constitute actual or constructive notice to the [City]." (Italics added.)
Based on these argument headings, this appears to be a case about the exclusion of evidence. But the trial court did not rule on any evidentiary objections. We therefore presume the objections have been overruled and the trial court considered the evidence in ruling on the merits of the summary judgment motion. (Reid, supra, 50 Cal.4th at p. 534.) More importantly, the court did not exclude any evidence.
Rule 8.204(a)(1)(B) requires that each point raised in an appellate brief appear "under a separate heading or subheading summarizing the point . . . ." Failure to do so may result in waiver or forfeiture of the argument. (Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360, 380, fn. 16 [court declined to address contentions not listed under a "separate heading or subheading"]; Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201 [appellant forfeited his argument by violating this rule]; Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294 [court declined to "consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument"]; Roe v. McDonald's Corp. (2005) 129 Cal.App.4th 1107, 1114 [absence of argument heading and analysis of the issues sufficient to deem the argument waived].)
Headings and coherent arguments in appellate briefs aid the work of the appellate court by requiring the parties to present their cases in a systematic, orderly manner. Argument headings assist the court in identifying " 'the exact question under consideration, instead of being compelled to extricate it from the mass.' " (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 1004 (Fyke).) They promote good organization, lend order to the discussion, and avoid a " 'shot-gun' or rambling 'stream of consciousness' " approach. (Eisenberg, et al., Cal. Practice Guide, Civil Appeals and Writs (The Rutter Group 2016) ¶9:151, p. 9-45 (Civil Appeals), citing Fyke, at p. 1004.)
Since the trial court did not exclude any evidence, Plaintiff's argument headings provide no guidance regarding what this appeal is about. Plaintiff's second argument heading is followed by several subheadings composed of brief phrases that function as passive titles for each subsection. Each heading and subheading in a brief should be a one-sentence summary of the underlying argument, rather than a passive title. (Civil Appeals, supra, ¶¶9:107, 9:150; pp. 9-34, 9-45.) The passive subheadings do not aid our understanding of this appeal.
Subheading II.A. is "Change in Physical Conditions." The sub-subheadings under II.A. state in relevant part: "i. Increased Traffic Flow, Accidents and Changed Conditions," "ii. The absence of a barrier or fence . . . ," "iii. The vertical decline drop . . . ," and "iv. Overgrown trees in the center median/deceptive visibility."
In this case, we exercise our discretion to overlook these deficiencies in Plaintiff's brief. We have carefully reviewed the record and the parties' arguments and turn to the merits of the dangerous condition claim. Appellant's counsel is put on notice that future rules violations of this type may result in forfeiture.
V. Legal Principles Regarding Dangerous Condition of Public Property Claims
Under the Government Claims Act (the Act), " '[a] public entity is not liable for an injury,' '[e]xcept as otherwise provided by statute.' " (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347 (Hampton), citing § 815, subd. (a) and Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897 ["there is no common law tort liability for public entities in California . . ."].) The Act declares a general rule of immunity (§ 815) and then sets out exceptions to that rule. (Cole, supra, 205 Cal.App.4th at p. 757.) Plaintiff invokes the exception for a dangerous condition of public property.
A. Liability Based on Dangerous Condition of Public Property
The Act "provides for direct liability on the part of public entities for injuries caused by maintaining dangerous conditions on their property when the condition 'created a reasonably foreseeable risk of the kind of injury which was incurred' and either an employee's negligence or wrongful act or omission caused the dangerous condition or the entity was on 'actual or constructive notice' of the condition in time to have taken preventive measures. (§ 835; . . . .) A dangerous condition is one that 'creates a substantial . . . risk of injury' when the property is 'used with due care in a manner in which it is reasonably foreseeable that it will be used.' (§ 830, subd. (a).)" (Hampton, supra, 62 Cal.4th at pp. 347-348, citing Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66 (Cornette).) "Property is not 'dangerous' within the meaning of the statutory scheme if the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care." (Brenner, supra, 113 Cal.App.4th at p. 439.)
As set forth in section 835, the cause of action for dangerous condition of public property consists of the following elements: "(1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff's injuries; and (5) compensable damage sustained by the plaintiff." (Cole, supra, 205 Cal.App.4th at p. 758.)
"If a dangerous condition is demonstrated, the public entity may still prevail against a claim by means of an affirmative defense of immunity. Various types of public sector immunity have been established by statute . . . ." (Hampton, supra, 62 Cal.4th at p. 348, citing §§ 830.8 and 831.2 as examples.) This case concerns the affirmative defense of design immunity under section 830.6.
B. Design Immunity
Section 830.6 provides in relevant part: "Neither a public entity nor a public employee is liable . . . 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."
Design immunity is an affirmative defense a public entity defendant must plead and prove. (Cameron v. State (1972) 7 Cal.3d 318, 325 (Cameron).) 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." (Cornette, supra, 26 Cal.4th at pp. 66, 69.)
Design immunity reflects the Legislature's intent to insulate discretionary planning and design decisions by responsible public officials from review in tort litigation. (Baldwin v. State of California (1972) 6 Cal.3d 424, 434 (Baldwin), superseded by statute on another ground as stated in Cornette, supra, 26 Cal.4th at pp. 70-71.) Design immunity "is predicated upon the concept of separation of powers—that is, the judicial branch through court or jury should not review the discretionary decisions of legislative or executive bodies . . . ." (Higgins v. State of California (1997) 54 Cal.App.4th 177, 185 (Higgins), internal quotations omitted.) The purpose of 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. [Citation.]" (Cornette, supra, 26 Cal.4th at p. 69.) "[T]o permit reexamination in tort litigation of particular discretionary decisions where reasonable [people] may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested." (Ibid., internal quotation marks and citations omitted; accord Hampton, supra, 62 Cal.4th at p. 349 ["the law's purpose is to avoid the dangers involved in permitting reexamination and second-guessing of . . . design decisions in the context of a trial"].)
As we have noted, the City's motion attacked Plaintiff's dangerous condition claim in four ways. First, the City argued Plaintiff could not establish the existence of a dangerous condition based on the failure to provide lighting or traffic controls as a matter of law. Second, the City argued that the alleged dangerous condition was not a proximate cause of Camacho-Torres's death because the accident was caused by a lack of due care and inattention by Camacho-Torres and the drivers. Third, the City argued it had no notice of the alleged dangerous condition. If the City met its initial burden on any one of these elements, the burden shifted to Plaintiff to demonstrate a triable issue of material fact as to that element. (Code Civ. Proc., § 437c, subd. (p)(2); Saelzler, supra, 25 Cal.4th at p. 780.) Fourth, the City relied on the design immunity defense (§ 830.6). The trial court agreed that Plaintiff could not establish that there was a dangerous condition on Branham in the area where the accident occurred. Consequently, it did not address the City's design immunity defense. We begin by addressing design immunity. VI. Analysis of Design Immunity Defense
To obtain summary judgment based on design immunity, the City had the initial burden to "show" a "complete defense." (Code Civ. Proc., § 437c, subd. (p)(2).) To meet that burden, the City was required to present admissible evidence on each element of the defense. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) Lack of substantial evidence on any one element bars relief, "even if the plaintiff failed to introduce a scintilla of evidence challenging that element." (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831.)
A. First Element: Causal Relationship
The first element of design immunity (a causal relationship between the plan or design and the accident) requires proof that the alleged design defect, as opposed to some other cause, was responsible for the accident. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940 (Grenier), citing Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 570, 575 [causation negated by evidence showing poor maintenance and clogging of drainage system, not merely system's design].) "Design immunity does not immunize decisions that were not made. [Citation.] Thus, the 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." (Grenier, supra, at pp. 940-941, fn. omitted.)
In Higgins, the court explained: a "[c]ausal relationship is proved by evidence the injury-producing feature was actually a part of the plan approved by the governmental entity: Design immunity is intended to immunize only those design choices which have been made. A case in point is Cameron[, supra,] 7 Cal.3d 318, 326 . . . , where superelevation around a curve constituted the dangerous condition causing [the] plaintiffs to lose control of their car. The plans showed many aspects of the roadway, but there was no evidence 'the superelevation which was actually constructed on the curve . . . was the result of or conformed to a design approved by the public entity vested with discretionary authority.' (Id. at p. 326.) The state thus failed to prove the causation element—that a discretionary decision was actually made regarding the dangerous condition which caused the plaintiffs' accident. (Ibid.)" (Higgins, supra, 54 Cal.App.4th at pp. 185-186.)
The plaintiffs in Higgins argued the absence of a median barrier on the freeway where their automobile accident occurred was not a design choice made by the approving body. The appellate court concluded that, unlike Cameron, the state had presented substantial evidence the design plans did consider the matter. The state's evidence included a declaration from a Caltrans traffic engineer that median barriers are not required on medians wider than 45 feet, that the median at issue was more than 46 feet wide, that the location conformed with design standards for medians, and that the plans approved by the state did not call for the placement of a median barrier. (Higgins, supra, 54 Cal.App.4th at p. 186.)
On summary judgment, the defendant may rely on the allegations of the complaint to establish this element, as the City did in this case. (Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550 (Alvis), citing Fuller v. Department of Transportation (2001) 89 Cal.App.4th 1109, 1114.) Acknowledging this rule, Plaintiff argues there are triable issues regarding the causal relationship element since the City "disputed causation in its own moving papers." Plaintiff does not point to any evidence that creates a triable issue on this point. She merely cites the argument in the City's points and authorities below regarding this element of the design immunity defense.
Plaintiff's argument appears to conflate two different concepts of causation: (1) causation as an element of the dangerous condition cause of action, and (2) causation for the purposes of the design immunity defense. Her argument seems to be that since the City argued—in challenging the elements of the cause of action—that there was no causal relationship between the alleged dangerous condition and the accident because the accident was proximately cause by the conduct of Camacho-Torres or the drivers, the City may not rely on Plaintiff's pleadings to establish the causal relationship element of the design immunity defense. Nothing in the statutes or case law prohibits the City from arguing alternative grounds in its motion for summary judgment. And the City's arguments are not evidence. Moreover, the Alvis rule applies only to the design immunity defense, and not the elements of Plaintiff's dangerous condition claim. (Alvis, supra, 178 Cal.App.4th at p. 550.)
In our view, the City has met its burden of establishing the causal relationship element. Although the primary focus of Plaintiff's complaint was the lack of lighting in the area where the accident occurred, the complaint alleged the City "failed to take reasonable measures to ensure traffic and pedestrian safety conditions existed on Branham . . . by failing to . . . install center fencing and barriers, . . . and other pedestrian safety devices along Branham." The complaint also alleged installation of a barrier fence, among other things, would have prevented Camacho-Torres's death. These allegations were sufficient to establish the causal relationship element of the design immunity defense. (Alvis, supra, 178 Cal.App.4th at p. 550.) In her papers below and at the hearing of the motion, Plaintiff narrowed the scope of her dangerous condition claim and told the court the dangerous condition at issue was the City's failure to construct a barrier fence in the median to prevent pedestrians from crossing Branham at the location where the accident occurred. On appeal, Plaintiff relies on the same theory of liability; she does not argue any negligence by the City or other theory of liability independent of its design of the intersection and the absence of a barrier fence. (See Alvis, at p. 550, citing Cameron, supra, 7 Cal.3d at pp. 328-329 [§ 830.6 does not immunize for liability caused independent of design].)
Plaintiff's complaint alleged the area where the accident occurred was in a "negligently, and recklessly dangerous state of disrepair"; the City had a "duty . . . to properly . . . maintain roadway and traffic pedestrian safeguards"; the City negligently failed to create a plan to monitor, service, and maintain inoperable streetlights and the median, failed to monitor and correct changes in the roadway, and failed to maintain and replace burned out streetlights. The "claim that a public entity is negligent for failing to provide streetlights . . . has long been rejected. A public entity is under no duty to light its streets." (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 133 (Mixon), citing Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483; see also Plattner v. City of Riverside (1999) 69 Cal.App.4th 1441m 1443 [because city had no duty to provide lighting, it "ha[d] no duty to maintain that lighting"].) Moreover, the "Legislature has expressly provided that '[a] condition is not a dangerous condition . . . merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.' (§ 830.4.) Thus, the statutory scheme precludes a plaintiff from imposing liability on a public entity for creating a dangerous condition merely because it did not install the described traffic control devices. [Citations.]" (Brenner, supra, 113 Cal.App.4th at p. 439.) In an apparent acknowledgement of this authority, Plaintiff abandoned these theories and told the court the dangerous condition at issue in this case is the failure to install a barrier fence on the median. At the hearing on the motion, Plaintiff also acknowledged that case law holds the City has no duty to provide operable street lights. Plaintiff does not argue on appeal that she has any other cause of action other than her dangerous condition claim based on the failure to install a barrier fence.
In addition to the allegations of the complaint, which were sufficient alone to establish this element, the City's evidence supports the conclusion that the omission of a barrier fence was part of the plan approved by the City. The City's evidence included engineering plans for the construction and improvement of the median on Branham near Eagle Lake in 1980, 1986, and 1998. The construction and planting plans for the median demonstrate that the median was designed without a barrier fence. The plans include details regarding irrigation, trees, and shrubs to be installed on the median. A reasonable inference from the plans is that the omission of a barrier fence was a conscious decision by the design professionals. (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 734 (Alvarez).) The City's expert Ruzak also stated that the landscaping on the median served "as a barrier to discourage pedestrian crossing."
For these reasons, we conclude the City has established the first element of the design immunity defense.
On appeal, Plaintiff does not advance any argument challenging the City's showing on the second and third elements of the design immunity defense. Since the City had the burden to establish these elements, we review the City's showing to determine whether it was entitled to summary judgment based on the defense.
B. Second Element: Discretionary Approval
"The second element, discretionary approval prior to construction, 'simply means approval in advance of construction by the legislative body or officer exercising discretionary authority.' [Citation.] 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 element of prior approval. [Citation.]" (Grenier, supra, 57 Cal.App.4th at p. 940.) "[T]he discretionary approval element of design immunity asks whether a person vested with discretion to approve the plan did approve the plan or design that was built. The question whether it was wise to approve the plan is judged under the reasonableness element of the statute." (Hampton, supra, 62 Cal.4th at p. 340.)
As we have noted, the City's evidence included engineering plans for Branham, including the construction and improvement of the median in 1980, 1986, and 1998. Noe Veloso, the Division Manager Engineer for the City's Department of Transportation (DOT), declared that the decisions to locate traffic signals and marked crosswalks at Branham's major intersections with Almaden and Pearl, rather than at Eagle Lake, and to install medians along Branham between Pearl and Glenmont, was based on recommendations by qualified traffic engineers and was ultimately approved by the City's engineer. Veloso declared that the engineer's approval of proposed changes represented on the plans confirms that the changes met applicable engineering standards and represents a responsible exercise of engineering discretion and judgment. (See Alvarez, supra, 79 Cal.App.4th at p. 732 [engineer who did not personally approve the project may provide expert testimony regarding the public entity's discretionary approval custom and practice].)
The as-built plans for the median from 1980 were prepared by employees of the City's department of public works and approved by A.R. Turturici, a civil engineer, who was then the City's Director of Public Works. The 1986 plans were prepared by the City's department of public works, aided by an outside landscape architectural firm. They were approved by L. Benson, the principal civil engineer in the City's architectural engineering department; G. Roberts, a civil engineer in the transportation division; and D. K. Dewell, a registered civil engineer, who was then the City's Director of Public Works. The 1998 plans were prepared by outside civil engineers as part of a nearby development project and approved by the City's project engineer and R. Qualls, Jr., the City's Director of Public Works. This was sufficient to establish discretionary approval. (See Grenier, supra, 57 Cal.App.4th at p. 941; Becker v. Johnston (1967) 67 Cal.2d 163, 172-173 [copy of design plans showing they were approved by division engineer and State Highway Engineer was substantial evidence that reasonable public employee could have approved design], disapproved on another ground in Baldwin, supra, 6 Cal.3d at pp. 427, 438.)
As in Hampton, the City's evidence that the engineers named above had authority to approve the design was uncontradicted and Plaintiff presented no evidence that these employees lacked authority to approve the design. (Hampton, supra, 62 Cal.4th at p. 358.) Moreover, Plaintiff does not argue on appeal that this element has not been established. We conclude the City has established the discretionary approval element of design immunity.
C. Third Element: Reasonableness of Design
"The third element of design immunity, substantial evidence of reasonableness of design, requires only substantial evidence. '[A]s long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity. The statute does not require that property be perfectly designed, only that it be given a design which is reasonable under the circumstances.' [Citation.] Generally, a civil engineer's opinion regarding reasonableness is substantial evidence sufficient to satisfy this element. [Citation.] Approval of the plan by competent professionals can, in and of itself, constitute substantial evidence of reasonableness. [Citation.]" (Grenier, supra, 57 Cal.App.4th at p. 941.) Courts also consider evidence that the design complied with prevailing professional standards of design and safety. (See e.g., Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, 58-59 (Weinstein); Uyeno v. State of California (1991) 234 Cal.App.3d 1371, 1380-1382.) The accident history of the improvement has been considered in evaluating the reasonableness of the design. (Callahan v. City and County of San Francisco (1971) 15 Cal.App.3d 374, 379-380.) "Section 830.6 makes the resolution of this issue a matter of law for the trial or appellate court." (Alvis, supra, 178 Cal.App.4th at p. 553, citing Cornette, supra, 26 Cal.4th at p. 72.)
The regular rules governing motions for summary judgment, which require that the motion be denied if the party opposing the motion raises any triable issue of material fact, do not apply to the reasonableness element of the design immunity defense. (Wyckoff v. State of California (2001) 90 Cal.App.4th 45, 50-51 (Wyckoff).) " '[T]he defendant is not required to prove to the court that the design or plan was in fact a reasonable one. Instead, the defendant is merely required to adduce any "substantial evidence" that a reasonable public employee or legislative body could have approved the plan or design used . . . .' " (Id. at p. 51.) "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." (Grenier, supra, 57 Cal.App.4th at p. 940.) "That a plaintiff's expert may disagree does not create a triable issue of fact." (Id. at p. 941.)
In this case, DOT managing engineer Veloso declared that the "decision regarding the design, type and location of the . . . center median was made and approved by the City Engineer . . . a registered civil engineer, experienced traffic engineer, . . . pursuant to reasonable accepted principles of traffic design . . . ." As we have noted, the 1980 plans for the median were approved by the public works director, a civil engineer. The 1986 plans were signed off by three design professionals for the City: the principal civil engineer in the architectural engineering department, a civil engineer in the transportation division; and the Director of Public Works, who was also a registered civil engineer. These approvals can constitute substantial evidence of reasonableness. (Grenier, supra, 57 Cal.App.4th at p. 941.) DOT Senior Civil Engineer Bittner declared that the design features at the intersection of Branham and Eagle Lake, which include "no marked crosswalk across Branham conform to the standards in the California Manual on Uniform Traffic Control Devices (CA-MUTCD) and sound engineering practices." Bittner reviewed the DOT's crash database for the 10-year period before Camacho-Torres's accident and determined that there was only one prior motor vehicle-pedestrian accident at the intersection of Branham and Eagle Lake. Based on DOT traffic counts for 2010, Bittner estimated that 73 million cars passed through the intersection during that 10-year period. Bittner opined that "[i]n consideration of the collision over this 10-year period relative to the over 73 million vehicles that traveled through it during the same timeframe, the subject intersection demonstrated a good safety record." The City's retained civil engineering expert, Edward Ruzak, declared that "the MUTCD reasonable design standards for geometric design and traffic operation were not violated and did not constitute a dangerous condition at the subject location. The entire intersection design conforms to accepted standards and policy, and sound engineering principles governing crosswalk and stop sign placement."
In our view, this constituted substantial evidence of the reasonableness of the design. That Plaintiff presented expert evidence disputing the reasonableness of the design, even if it created a triable issue, does not preclude summary judgment based on design immunity. (Grenier, supra, 57 Cal.App.4th at p. 940.) Plaintiff does not argue otherwise on appeal or attack the City's showing on the reasonableness element. Instead, she argues the City lost its design immunity. VII. Loss of Design Immunity
"Design immunity does not necessarily continue in perpetuity." (Cornette, supra, 26 Cal.4th at p. 66.) A public entity may lose its design immunity where the plan or design becomes dangerous in its actual operation due to changed physical conditions. (Id. at pp. 69-70; Alvis, supra, 178 Cal.App.4th at p. 554.) Notwithstanding the language in her argument headings regarding the exclusion of evidence, Plaintiff's contention appears to be that the City lost its design immunity due to changed physical conditions.
In Baldwin, the Supreme Court held: "[W]here a plan or design of a construction of, or improvement to, public property, although shown to have been reasonably approved in advance or prepared in conformity with standards previously so approved, as being safe, nevertheless in its actual operation under changed physical conditions produces a dangerous condition of public property and causes injury, the public entity does not retain the statutory immunity from liability conferred on it by section 830.6." (Baldwin, supra, 6 Cal.3d at p. 438, fn. omitted.) Baldwin involved "an intersection on a state highway that did not have a left-turn lane, a design which was reasonable at the time it was constructed because the traffic volume . . . was light. However, in the 25 years that elapsed before Mr. Baldwin's accident, the traffic volume had greatly increased, resulting in a large number of serious rear-end collisions of the sort suffered by Mr. Baldwin, and this dangerous condition was repeatedly brought to the attention of the state. . . . . Under these circumstances, . . . , the state could no longer rely on the defense of design immunity." (Cornette, supra, 26 Cal.4th at pp. 70-71, citing Baldwin, at pp. 427-431, 434 & fn. 8.)
After Baldwin, the Legislature amended section 830.6 and set forth standards governing the loss of design immunity due to changed conditions. 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." (Cornette, supra, 26 Cal.4th at p. 72.) " '[W]here experience has revealed the dangerous nature of the public improvement under changed physical conditions, the trier of fact will not simply be reweighing the same technical data and policy criteria which went into the original plan or design. Rather, there will then be objective evidence arising out of the actual operation of the plan—matters which, of necessity, could not have been contemplated by the government agency or employee who approved the design. No threat of undue interference with discretionary decision-making exists in this situation.' " (Id. at p. 73, quoting Baldwin, supra, 6 Cal.3d at p. 435.)
The amendment added the following language to section 830.6: "Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee. In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard. However, where a person fails to heed such warning or occupies public property despite such warning, such failure or occupation shall not in itself constitute an assumption of the risk of the danger indicated by the warning." (§ 830.6; Cornette, supra, 26 Cal.4th at p. 71, citing Stats. 1979, ch. 481, § 1, pp. 1638-1639.)
A. Procedural Problem With Loss of Immunity Claim
To obtain summary judgment, the City bore the burden of establishing each element of its design immunity defense. (Code Civ. Proc., § 437c, subd. (p)(2); Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) Generally, where a "defendant as moving party, has shown a complete defense to the action, [the] plaintiff may avoid summary judgment by showing a triable issue of material fact exists as to some element of that defense." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 10:256, p. 10-113.) We have already rejected Plaintiff's challenge to the causal relationship element of the City's design immunity defense, the only element she challenges on appeal.
As a separate challenge to the City's design immunity defense, Plaintiff argues that the City lost its design immunity based on changed conditions. "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." (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806 (Mirzada), citing Cornette, supra, 26 Cal.4th at p. 72.) Consistent with her burden at trial of establishing the elements of the City's loss of design immunity, Plaintiff "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 [the City's] motion for summary judgment." (Mirzada, supra, at pp. 806-807.)
The City's separate statement set forth only three facts that touch on Plaintiff's loss of design immunity claim. The City's UMF No. 34 asserted, in part, that Rusak had opined "there was insufficient accident history to conclude that there were changed conditions to warrant changes to the roadway." Its UMF No. 37 stated that the only complaints the City had received about the intersection of Branham and Eagle Lake involved "ingress and egress at the Clement School, and parking issues on the north side of Branham." UMF No. 38 stated that the City "did not receive any complaints regarding the specific dangerous condition" alleged here. All of these facts go to the question whether the City had knowledge of the alleged changed condition, the second element of Plaintiff's loss of design immunity claim. The City's separate statement did not address the first and third elements of the claim.
The summary judgment statute provides that, in addition to responding to each of the moving party's facts, the opposing party's separate statement "shall set forth plainly and concisely any other material facts the opposing party contends are disputed." (Code Civ. Proc., § 437c, subd. (b)(3).) Since Plaintiff had the burden of production on the loss of design immunity claim, she was required to include disputed facts related to the first and third elements of the claim in her separate statement. Plaintiff did not include any new facts in her separate statement. We shall nonetheless examine Plaintiff's showing on each element of her loss of design immunity claim.
B. First Element: Change in Physical Conditions
Plaintiff argues there was a change in physical conditions at the site of the accident based on increased traffic flow and accidents, the absence of a barrier fence on the median, the vertical drop on Branham between Glenmont and Eagle Lake, overgrown trees on the median, and "deceptive visibility." The City contends Plaintiff has not shown any changed conditions that would defeat design immunity.
Plaintiff argues the "fact that Branham . . . is a 40 mph speed limit, major arterial , . . . which consists of three east bound [sic] and three west bound [sic] lanes separated by a 14[-]foot wide raised median with high traffic volume recorded to be an average . . . of 22,180 [vehicles] daily would surely give the City constructive notice that its failure to place a barrier fence . . . would create a dangerous condition."
A "claimed change in physical conditions cannot be based on the same technical data or policy decisions that went into the original plan or design." (Alvis, supra, 178 Cal.App.4th at p. 555, citing Cornette, supra, 26 Cal.4th at p. 73.) "Without evidence of some change, a design which was reasonably approvable at its inception remains reasonably approvable today." (Compton v. City of Santee (1993) 12 Cal.App.4th 591, 598 (Compton).) Since at least 1980, Branham has been a 40-mile-per-hour roadway, with three traffic lanes in each direction and a raised concrete median. These characteristics of the roadway have remained unchanged since the median was designed in 1980, and therefore do not support Plaintiff's loss of immunity claim.
C. Plaintiff's Evidence and Arguments Regarding Increases in Traffic Flow and Accidents Do Not Create a Triable Issue Regarding a Change in Physical Conditions or Notice
Plaintiff argues increased traffic flow and accidents is a change of physical conditions and increased accidents provided notice of the changed condition, which negates the City's design immunity defense. The traffic volume figure Plaintiff cites (22,180 vehicles daily) is from the City's 2004 engineering survey for Branham between Almaden and Pearl. Plaintiff has not provided any evidence regarding traffic volume when the median was constructed in 1980, when it was later improved, or when the accident occurred in 2011. She provided no evidence regarding the design capacity for traffic volume at the area where the accident occurred. Thus, Plaintiff provided no evidence that supports her assertion that an increase in traffic has resulted in changed conditions at the accident site. To avoid summary judgment, Plaintiff was required to provide evidence that created a triable issue of material fact. She could not rely on argument or speculation that traffic had increased with the passage of time. (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481 [opposing party does not controvert moving party's evidence with evidence that is "based on speculation, imagination, guess work, or mere possibilities"].)
The record also contains traffic count data for two specific dates in May and June 2010, which show 15,008 and 21,645 vehicles per day respectively. Albeit a small sample, these figures are less than the traffic volume recorded in 2004, which tends to undercut Plaintiff's argument that there was an increase in traffic in the area.
Even if Plaintiff's evidence had demonstrated an increase in traffic, an "increase in traffic alone, . . . , is insufficient to establish the loss of design immunity. Without more, an increase in traffic proves nothing." (Mirzada, supra, 111 Cal.App.4th at p. 808.) "[W]hile increased traffic volume may constitute changed physical conditions [citations], design immunity is not lost simply because the design is operating under changed physical conditions. There must be evidence that the design, under changed physical conditions, has produced a dangerous condition of which the [public entity] is aware. [Citation.]" (Alvarez, supra, 79 Cal.App.4th at p. 737, citing Baldwin, supra, 6 Cal.3d at pp. 434, 438.) In Higgins, two individuals sued the State after sustaining injuries in a cross-median highway accident that allegedly could have been prevented by a median barrier. The court found the State was entitled to design immunity under section 830.6 and that the exception for changed conditions did not apply. Specifically, the court found the fact that traffic volume had more than doubled since the original plan did not constitute a changed condition. The court stated, "Abstract numbers prove nothing," and concluded the plaintiffs' evidence did not controvert the State's evidence. (Higgins, supra, 54 Cal.App.4th at p. 188; accord Weinstein, supra, 139 Cal.App.4th at p. 60 [increased traffic and corresponding increase in accidents insufficient when no showing that either increase was inconsistent with state standards].)
Plaintiff asserts an increase in the number of accidents on Branham both demonstrated changed conditions and provided the City constructive notice of the dangerous condition. Plaintiff relies on the following evidence to show an increase in accidents: (1) a San Jose Police Department spreadsheet listing reported collisions on Branham between Almaden and Pearl from January 2005 through June 2012 (hereafter SJPD Spreadsheet); (2) a SWITRS report prepared by the California Highway Patrol (CHP) describing reported collisions on Branham between Eagle Lake and Pearl from 2004 through November 2011 (hereafter CHP Report); and (3) an excerpt from a police report regarding an accident at Branham and Glenmont.
Although not defined in the record, we understand SWITRS to stand for "Statewide Integrated Traffic Records System," a CHP database that collects and processes data from motor vehicle collisions. (http://iswitrs.chp.ca.gov/Reports/jsp/userLogin.jsp. [as of Dec. 22, 2017].)
Plaintiff makes three arguments. First, she contends the SJPD Spreadsheet demonstrates that there were 22 accidents on Branham between Almaden and Pearl in 2011 and that four of those accidents occurred on Branham between Glenmont and Eagle Lake. (Glenmont is one block away from the site of Camacho-Torres's accident.) Second, Plaintiff argues the CHP Report shows that there were four nighttime accidents on Branham between Eagle Lake and Pearl between September 2010 and the date of Camacho-Torres's accident. Third, she argues the CHP Report documents one prior fatal pedestrian-motor vehicle accident on December 3, 2007 at the same location as Camacho-Torres's accident. Plaintiff does not explain how these facts or this evidence demonstrates an increase in accidents that amounts to changed conditions or notice of a changed condition, which in turn supports her claim the City lost its design immunity.
In Wyckoff, this court reviewed the case law on the question whether an increase in accidents supports a loss of immunity claim and discussed three cases: Compton, Higgins, and Alvarez. (Wyckoff, supra, 90 Cal.App.4th at pp. 61-62.) We find that discussion instructive and repeat it here. In Compton, there were four prior accidents in less than five years at the allegedly dangerous intersection. The court stated, " 'Evidence showed that each year approximately 4,469,920 vehicles traveled southbound through the intersection, while approximately 136,649 vehicles traveled northbound and negotiated the left turn. Though somewhat ambiguous, the facts reveal there were between zero and four other accidents similar to Compton's accident at the intersection in the nearly five-year period preceding the accident. To prove that this accident history put City on 'notice' of the 'dangerous condition,' it was incumbent on Compton to show this rate was statistically aberrant, i.e., unusual or excessive in some respect. No such evidence appears in this record. Nowhere does plaintiff produce evidence that one accident per year in an intersection carrying 4.5 million vehicles per year is sufficiently beyond ordinary statistical probabilities to alert City of the dangerous nature of the intersection.' " (Wyckoff, at p. 61, quoting Compton, supra, 12 Cal.App.4th at pp. 599-600, fn. omitted.)
"In Higgins[,] . . . the court held that the exception to immunity for changed conditions did not apply even though there were three prior accidents in four years at the accident site. 'As for the accident history,' the court explained, 'the state concedes there were two cross-median accidents in 1987, [and] one in 1989 . . . . [The plaintiff's expert] attested, 'By the state's own standards, such a high incidence of cross-median accidents within a one-mile stretch of roadway within a three and one-half year period should have warranted an investigation concerning the placement of a median barrier.' But [the State's engineer] testified the accident rate was below the .50 ratio which, under state standards, would trigger an investigation. . . . Moreover, Higgins failed to show the accident rate was "statistically aberrant, i.e. unusual or excessive in some respect." [Citation.]' " (Wyckoff, supra, 90 Cal.App.4th at p. 62, citing Higgins, supra, 54 Cal.App.4th at p. 188.)
"Finally in Alvarez . . . , there were seven cross-median accidents within the 3.42-mile area surrounding the accident site that lacked a barrier. The court found no changed circumstances justifying an exception to [design immunity]. The court noted, 'There must be evidence that the design, under changed physical conditions, has produced a dangerous condition of which the State is aware. [Citations.] [¶] . . . An improvement may come to constitute a dangerous condition if increased traffic at the site, coupled with an aberrant accident history, indicates its dangerousness. (See, e.g., Baldwin, supra, 6 Cal.3d at pp. 428-429 [13 accidents in six months; intersection accounted for 14 percent of all traffic fatalities in the city]; Bane [v. State of California (1989)] 208 Cal.App.3d [860,] 872-873 . . . [intersection averaged twice as many accidents as similar intersections in the state; in the previous 18 months, 47 accidents resulted in five deaths and 89 injuries].)' [Citation.] The court referred to the site of Alvarez's accident, with its seven prior cross-median accidents as having an 'unremarkable accident history at the site,' in view of the fact that the State's accident warrants had not been met. [Citation.]" (Wyckoff, supra, 90 Cal.App.4th at p. 62, citing Alvarez, supra, 79 Cal.App.4th at pp. 737-738.)
In Wyckoff, the evidence showed that with an average daily traffic volume of 95,000 vehicles, over 34.5 million vehicles used State Route 85 each year. (Wyckoff, supra, 90 Cal.App.4th at p. 61.) Although there had been nine cross-median accidents, they were not concentrated in one area, but occurred from one end of the 24-mile freeway to the other. Four involved only property damage. Just two occurred within the three- mile construction project where the plaintiff's accident occurred and none was within a half-mile on either side of the plaintiff's accident. The State's expert explained, " 'the cross-median accident rate at this location was zero (0) accidents per mile per year. In contrast, the general rate of 0.50 accidents per year (based on a minimum of 3 accidents in 5 years) is necessary to qualify this location for consideration of barrier installation.' Plaintiff did not dispute that the State's accident warrants had not been met." (Id. at p. 61.) This court concluded the plaintiff had not shown that nine accidents over a 24-mile freeway in 21 months was sufficiently statistically aberrant to put the State on notice of a dangerous condition and that the plaintiff had failed to establish changed conditions justifying an exception to design immunity. (Id. at pp. 61-62.)
In Grenier, the court concluded that the plaintiff had shown one previous accident at the accident location and had presented no evidence that a single accident in seven years constituted a change in conditions. (Grenier, supra, 57 Cal.App.4th at p. 945.) Notably, Plaintiff's brief does not mention Compton, Higgins, Alvarez, Wyckoff, or Grenier or discuss the applicable legal standard for evaluating changed conditions based on an alleged increase in accidents.
We have carefully analyzed Plaintiff's evidence and conclude it does not demonstrate increased accidents at the accident site. First, Plaintiff argues there were 22 accidents on Branham between Almaden and Pearl in 2011. Plaintiff's arguments and evidence regarding the number of accidents in 2011, around the time of Camacho-Torres's accident, does not demonstrate a change in conditions. A factual showing limited to "current conditions, without any suggestion that current conditions differed from the conditions prevailing when the plan was approved" is insufficient. (Grenier, supra, 57 Cal.App.4th at p. 945.)
Moreover, none of the 22 accidents from 2011 is material to our analysis. Only 17 of the 22 accidents Plaintiff cites occurred before Camacho-Torres's accident. Camacho-Torres's accident and accidents occurring thereafter are not material to the question whether the City had notice of changed conditions before the accident. We therefore do not consider five of the accidents from 2011. Fourteen of the remaining 17 accidents occurred at the intersections of Branham and Almaden or Branham and Pearl. Both of those intersections are major intersections controlled by crosswalks and signal lights. The median at issue does not extend into those intersections and it would be impractical to install a barrier fence at those locations. Thus, accidents at those locations would not have placed the City on notice of the need for a barrier fence on the median at Branham and Eagle Lake. We therefore conclude the accidents at the intersections of Branham with Almaden and Pearl are immaterial.
As for Plaintiff's contention that the CHP Report reveals four nighttime accidents between September 2010 and the date of Camacho-Torres's accident, the report actually documents only three nighttime accidents during that time frame. (Plaintiff included the subject accident in her calculation.) All three accidents were at the intersection of Branham and Pearl, which we have concluded is not a material fact.
The remaining three accidents from 2011 occurred at the intersection of Branham and Glenmont, one block away from the accident scene in this case. One of those "accidents" involved a narcotics arrest and misdemeanor hit and run, without injury, at 4:35 p.m. We fail to see how that would support a claim of changed conditions that require the installation of a barrier fence a block away at Branham and Eagle Lake and conclude that accident is also immaterial. As for the other two accidents—which occurred on July 20 and August 29—the intersection at Branham and Glenmont is different from the intersection of Branham and Eagle Lake in material ways. It is a four-legged intersection; unlike the intersection at issue in this case, the median does not cross the intersection at Branham and Glenmont. In addition, there are no trees or shrubs on the medians for quite some distance on either side of the intersection of Branham and Glenmont. Given these differences, we conclude these two accidents are immaterial to the question of changed conditions at the accident scene here.
There is very little information in record about the July 20, 2011 accident, other than it occurred in the morning and resulted in injury. As for the August 29, 2011 accident, an intoxicated pedestrian suffered multiple, non-life-threatening injuries after being struck by a car in the eastbound lanes of Branham about 60 feet east of the intersection of Branham and Glenmont. The driver said the pedestrian ran in front of her car, and the pedestrian had a blood alcohol level of 0.16. Even if we were to consider this accident, Plaintiff failed to present any evidence that the City had sufficient time in the 68 days between this accident and Camacho-Torres's accident to raise the necessary funds and do any remedial work. (§ 830.6; see Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1268.)
There was evidence of one other accident at the intersection of Branham and Eagle Lake. At 4:45 a.m. on December 3, 2007, a pedestrian was fatally injured by a motor vehicle at that location. The pedestrian was in the eastbound lanes of Branham, crossing from the south side of the street toward the median, when he was struck by a vehicle traveling 53 to 58 miles per hour. The motorist did not stop. It was undisputed that this was the only accident at the intersection of Branham and Eagle Lake in the 10 years before Camacho-Torres's accident and that at least 73 million vehicles passed through the intersection during that time (7.3 million per year). Ruzak, the City's expert opined that based on this accident history, the City had no notice of a changed condition at Branham and Eagle Lake.
Although Plaintiff's engineering expert Neuman said there were two prior accidents at the intersection of Branham and Eagle Lake—one in 2006 and one in 2007—Plaintiff's evidence does not support that statement. Neither the SJPD Spreadsheet nor the CHP Report lists a 2006 accident at Branham and Eagle Lake and Plaintiff submitted no other evidence of an accident at that location. We disregard Neuman's statement that there were two prior accidents at Branham and Eagle Lake since there is no factual basis for the statement. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 762.) Moreover, Plaintiff argues, "The entire accident history for this intersection is two fatal southbound pedestrian accidents at night," the 2007 accident and Camacho-Torres's accident. Thus, Plaintiff agrees there was only one prior accident that is material to our analysis.
To prove that this accident history put the City on notice of a changed condition that amounts to a dangerous condition, Plaintiff had to show this accident rate was statistically aberrant, i.e., unusual or excessive in some respect. (Wyckoff, supra, 90 Cal.App.4th at p. 61.) No such evidence appears in this record. Plaintiff has not produced evidence that one accident in 10 years, or even one accident in the four years before Camacho-Torres's accident in an intersection carrying 7.3 million vehicles per year is sufficiently beyond ordinary statistical probabilities to alert the City of the allegedly dangerous nature of the intersection. (Wyckoff, at p. 61; Compton, supra, 12 Cal.App.4th at pp. 599-600, fn. omitted.) Plaintiff's only evidence on point is her expert's opinion that the 2007 fatal accident at the same location should have triggered an engineering study. This is not the same as saying the accident rate at the location is aberrant, unusual, or excessive. In addition, this case is like Grenier, where the plaintiff presented evidence of one previous accident at the accident location and no evidence that a single accident in seven years constituted a change in conditions. (Grenier, supra, 57 Cal.App.4th at p. 945, accord Dole Citrus v. State of California (1997) 60 Cal.App.4th 486 [one similar incident in two years insufficient to provide notice of changed condition].) Following Grenier, we conclude that evidence of one prior accident in 10 years at the subject intersection was insufficient to demonstrate changed conditions.
In summary, Plaintiff did not present any evidence of increased traffic volume or increased accidents on Branham near the accident scene. She also failed to present evidence that the alleged increase in traffic created a dangerous condition or was inconsistent with engineering standards or exceeded the design capacity of the intersection. The evidence of only one prior accident in 10 years was insufficient to establish a dangerous condition based on increased accidents. We therefore conclude Plaintiff has failed to establish changed conditions justifying an exception to design immunity based on alleged increases in traffic and the number of accidents.
D. Plaintiff's Other Arguments and Evidence Do Not Create a Triable Issue Regarding Changed Conditions
Plaintiff argues that the changed conditions include: (1) the absence of a barrier fence on the median at Branham and Eagle Lake; (2) a parking scarcity problem, that forced apartment residents on the north side of Branham to park across the street; (3) the vertical drop in grade elevation on Branham between Glenmont and Eagle Lake; and (4) overgrown trees. The absence of a barrier fence does not constitute a changed condition, since it was a feature of the original design at issue. (Alvis, supra, 178 Cal.App.4th at p. 555.) As for the vertical drop and parking scarcity, Plaintiff's evidence demonstrated only that these were current conditions that may have contributed to the accident. Plaintiff did not present any evidence that these were changed conditions that were not part of or contemplated by the original design. As we have stated, a factual showing limited to "current conditions, without any suggestion that current conditions differed from the conditions prevailing when the plan was approved" is insufficient. (Grenier, supra, 57 Cal.App.4th at p. 945.)
We question the relevance and materiality of the alleged parking scarcity. According to Plaintiff, Camacho-Torres was walking to the mall; she was not going to a car she had parked across the street.
Plaintiff's experts described the trees on the median as ranging from 16 to 32 inches in diameter (presumably this refers to the tree trunks), 75 to 150 feet tall, with branches and limbs extending between 50 and 150 feet in circumference. Although not stated in the record, we infer these were the dimensions of the trees when Plaintiff's experts did their site visits in July 2013. Again, Plaintiff had to do more than describe the tress at the time of the accident to establish changed conditions that resulted in a loss of immunity.
The design plans for the median include detailed landscaping plans prepared by landscape architects that specified the types of trees to be planted on the median, which were approved by the City. Design immunity is not lost simply because the design is operating under changed physical conditions. There must be evidence that the design, under changed physical conditions, has produced a dangerous condition of which the City was aware. (Alvarez, supra, 79 Cal.App.4th at p. 737.) Plaintiff has not presented any evidence that the sizes of the trees at the time of the accident exceeded the design capacity of the original plans for the median. In addition, Plaintiff's argument that the trees affected visibility is a variation on her original claim that the accident was due to inadequate street lighting, a claim that is not a dangerous condition as a matter of law. (Mixon, supra, 207 Cal.App.4th at p. 133.)
On appeal, Plaintiff has not raised any issues regarding the third element of her loss of design immunity claim.
For the foregoing reasons, we conclude the City has established each element if its design immunity defense. Since Plaintiff has not demonstrated a triable issue with regard to the elements of the City's design immunity defense or her separate claim that design immunity was lost, we conclude the City was entitled to summary judgment on it design immunity affirmative defense.
In light of our conclusions, we shall not address Plaintiff's arguments regarding the trial court's ruling on the dangerous condition element of her causes of action.
DISPOSITION
The summary judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Elia, Acting P. J. /s/_________ Mihara, J.