Opinion
F075588
10-15-2018
CITY OF BAKERSFIELD, Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; EMMA K., a Minor, etc., Real Party in Interest.
O'Melveny & Myers, Sabrina Heron Strong, and Jennifer D. Cardelus; Clifford & Brown, Michael L. O'Dell, and Nicholas J. Street; Matheny Sears Linkert & Jaime, Richard S. Linkert, and Jack A. Klauschie, Jr., for Petitioner. No appearance for Respondent. Parris Law Firm, R. Rex Parris, Alexander R. Wheeler, and Jonathan W. Douglass for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CV283432)
OPINION
ORIGINAL PROCEEDING; Petition for Writ of Mandate. Sidney P. Chapin, Judge. O'Melveny & Myers, Sabrina Heron Strong, and Jennifer D. Cardelus; Clifford & Brown, Michael L. O'Dell, and Nicholas J. Street; Matheny Sears Linkert & Jaime, Richard S. Linkert, and Jack A. Klauschie, Jr., for Petitioner. No appearance for Respondent. Parris Law Firm, R. Rex Parris, Alexander R. Wheeler, and Jonathan W. Douglass for Real Party in Interest.
-ooOoo-
Real party in interest Emma K., a minor, filed a lawsuit through her guardian ad litem against petitioner the City of Bakersfield (City), inter alios. She alleged she was traversing a midblock crosswalk on Jewetta Avenue on the evening of January 28, 2014, when she was struck by a vehicle. Emma contended City was liable because the crosswalk was a dangerous condition of public property that caused her injuries. In turn, City claimed design immunity under Government Code section 830.6.
Emma filed a motion for summary adjudication of City's design immunity defense. The respondent court granted the motion, finding "[t]here is no triable issue of material fact with respect to the existence of a 'plan or design,' nor that any 'plan or design' was subjected to the approval of . . . City or . . . City's authorized representative with discretionary authority to approve." The court also found "City's evidence does not, and cannot, demonstrate a 'plan or design' prepared in conformity with previously approved standards."
The court certified its ruling for writ review pursuant to Code of Civil Procedure section 166.1.
Pursuant to Code of Civil Procedure section 437c, subdivision (m)(1), City petitioned for a writ of mandate directing the superior court to set aside and vacate its order granting the summary adjudication motion. We issued an order to show cause and instructed Emma to file a written return and City to file a reply to the return. The parties complied.
For the reasons set forth below, we affirm the superior court's order granting Emma's motion for summary adjudication.
FACTUAL AND PROCEDURAL HISTORY
The facts are based on the parties' separate statements of undisputed facts. (See Code Civ. Proc., § 437c, subd. (b)(1); see also Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641 [facts not set forth in the separate statement do not exist].)
We consider as part of the record evidence to which no objections were made (see Code Civ. Proc., § 437c, subd. (b)(5)) as well as evidence to which objections were made but not expressly sustained nor reasserted on appeal (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534; Stewart v. Superior Court (2017) 16 Cal.App.5th 87, 100; Sherman v. Hennessy Industries, Inc. (2015) 237 Cal.App.4th 1133, 1139, fn. 1). We do not consider evidence to which objections were made and sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
I. Background.
a. City's municipal code.
On March 17, 1999, City passed and adopted Ordinance No. 3885, which added Chapter 13.12 to its municipal code. This chapter, titled "Development Improvement Standards and Specifications," reads:
"13.12.010 Purpose.
"In order to protect the health, safety and general welfare of the citizens of . . . City . . . , the standards and specifications adopted herein shall be used to determine the necessity for, and manner of construction of, the particular types of improvements defined in Section 13.12.020. All such improvements shall conform to . . . City['s] . . . development improvement standards and specifications as adopted herein. The standards and specifications adopted herein shall be in addition to other development standards set forth in the provisions of this Code[.]
"13.12.020 Improvements defined.
"For purposes of this Chapter, 'improvements' shall be construed to be the construction of streets, . . . sidewalks[,] . . . streetlights, street signs[,] . . . and any other miscellaneous construction which may be required to be constructed in connection with any development authorized under this Code.
"13.12.030 Standards and specifications.
"A. Those certain standard manuals known and designated in subsection B herein, . . . each portion and provision thereof are hereby adopted by reference, as they may be amended from time to time, and are hereby declared to be the development improvement standards and specifications for the purpose stated therein.
"B. The following standard manuals are hereby adopted for the purposes stated in subsection A above: [¶] . . . [¶]
"9. Traffic Manual, CalTrans, 1992 [¶] . . . [¶]
"12. Manual on Uniform Traffic Control Devices, [Federal Highway Administration], 1988 . . . . [¶] . . . [¶]
"13.12.040 Duty of Public Works Director/City Engineer.
"The Public Works Director/City Engineer, or his authorized designee, is hereby charged with interpreting, applying and enforcing the development improvement standards and specifications set forth in this Chapter.
"13.12.050 Modifications
"Only the Public Works Director/City Engineer, or his authorized designee, is granted the authority to provide for modifications of the requirements set forth in this Chapter. Where there are practical difficulties involved in carrying out the provisions of the standards and specifications set forth in this Chapter, the Public Works Director/City Engineer, or his authorized designee, may grant modifications for individual cases. The Public Works Director/City Engineer, or his authorized designee, shall first find that a special individual reason makes the strict letter of these standards and specifications impractical and that the modification is in conformance with the intent and purpose of these standards and specifications and that such modification does not lessen any public safety requirement. The details of any action granting any modification shall be recorded and entered in the files of the Public Works Department. Any determination of the Public Works Director/City Engineer, or his
authorized designee, pertaining to the interpretation and application of this Chapter shall be final and conclusive."
"CalTrans" refers to the California Department of Transportation.
Section 13.12.030 lists 24 different manuals.
Chapter 2.12 of City's municipal code, titled "DEPUTY ENGINEER—DEPUTY STREET SUPERINTENDENT," reads in part:
"2.12.020 Powers and duties.
"Appointees of the said offices, when appointed and qualified, as required by law, shall, in the absence of the principal officer in the respective offices or departments to which the deputy city engineer is appointed, or at the request of the principal officer, do and perform any and all acts necessary to the office, for and on behalf of the principal officer, which principal officer might, could, would or should do and perform, and sign all documents in the name of his principal by himself as deputy, and when the deputy so acts in the place and stead of the principal officer, the acts so done and performed shall have a like force and effect as if same had been done and performed by the principal officer."
b. 1988 Federal Highway Administration Manual on Uniform Traffic Control Devices.
Section 3B-18 of the manual, titled "Crosswalks and Crosswalk Lines," reads in part:
"Crosswalk lines shall be solid white lines, marking both edges of the crosswalk."
c. 1996 CalTrans Traffic Manual.
Chapter 10 of the manual, titled "SCHOOL AREA PEDESTRIAN SAFETY," reads in part:
"10-04.3 Crosswalk Lines
"In accordance with the provisions of [Vehicle Code section] 21368:
" ' Whenever a marked pedestrian crosswalk has been established in a roadway contiguous to a school building or the grounds thereof , it shall be painted or marked in yellow . . . .' "
d. City's crosswalk pamphlet.
City published and disseminated a pamphlet identifying its policies and procedures for crosswalk installations. As stated in the pamphlet, "[i]t is . . . City's policy not to paint crosswalks at midblock locations where traffic is not controlled by stop signs or traffic signals."
e. Installation of midblock crosswalk on Jewetta Avenue.
Jewetta Avenue and the adjacent Liberty High School were constructed in or around 1997 in accordance with "formal design plans," which were reviewed beforehand by three City employees: traffic engineer Stephen Walker, engineering services manager Jack LaRochelle, and then-acting public works director Raul Rojas. Walker and LaRochelle certified the plans conformed to applicable government regulations and design standards; Rojas concurred and approved the plans. The parties agree the crosswalk in question "was not part of the original design plan for Jewetta Avenue."
In 2000, David Fisher, a Liberty High School campus police officer, asked City to install a crosswalk on Jewetta Avenue in front of the school. On September 12, 2000, City employee Manuel Fuderanan, an engineer, submitted a "CITY . . . [¶] TRAFFIC ENGINEERING [¶] WORK REQUEST" (Work Request), which included a sketch of the proposed crosswalk. Later, Walker and his subordinate, traffic engineer Ryan Starbuck, initialed the Work Request. Gilbert Alemao, a City maintenance worker and supervisor of the public works department's signs and striping section, installed a midblock crosswalk between Patrick Henry Drive and Eagle Rock Drive on September 24, 2000. The parties agree the crosswalk in question was "an 'add-on' to the existing roadway."
II. Depositions.
a. January 26, 2016, deposition of Stephen Walker.
i. Testimony cited by Emma in support of summary adjudication.
Page 23 of Walker's deposition transcript reads in part:
"Q. . . . In 1987 you became the traffic engineer, the highest ranked traffic engineer for . . . City . . . ; is that true?Page 29 of the transcript reads in part:
"A. Yes.
"Q. How long did you have that position?
"A. Until I retired.
"Q. In 2008?
"A. Yes." (Underlining omitted.)
"Q. When you were a traffic engineer did you approve design plans, is that part of your job?Pages 31 to 32 of the transcript read in part:
"A. I made recommendations for approval of plans.
"Q. . . . [D]id you have any authority when you were the traffic engineer . . . to approve, formally approve design plans?
"A. No.
"Q. Who did?
"A. The public works director, Mr. Rojas.
"Q. So you were able to suggest something for improvement but Mr. Rojas had to make the formal approval; is that true?
"A. Essentially, yes." (Underlining omitted.)
"[Q.] Is it true that the whole time you were a traffic engineer . . . Mr. Rojas or another [C]ity engineer that held his position was the only individual . . . that was allowed to formally approve design plans?
"A. Yes.
"Q. Is Mr. Rojas'[s] signature anywhere on . . . the [W]ork [R]equest?
"A. No. [¶] . . . [¶]
"Q. I think we established that Mr. Rojas'[s] signature is nowhere to be found on the [W]ork [R]equest . . . , true, sir?Page 33 of the transcript reads:
"A. True." (Underlining omitted.)
"Q. Do you consider . . . the [W]ork [R]equest to be a design plan?Page 40 of the transcript reads in part:
"A. No.
"Q. What is it?
"A. It's a work request. It's an application of an established standard for installation and incorporation into a public street.
"Q. Is the [W]ork [R]equest, was it an add-on to the original plans . . . ?
"A. It would not be an addendum or an appendix to it but it is certainly an addition to what is out on the street.
"Q. All right. So we have the original plans that are the formal design plans where the street in front of Liberty High School is designed and approved; is that accurate?
"A. Yes.
"Q. And then we have the [W]ork [R]equest that makes some additions to that original plan; is that true?
"A. Yes.
"Q. All right. So would you characterize . . . the [W]ork [R]equest that you've attached to your declaration to be an add-on to the original plans?
"A. Under that context, yes." (Underlining omitted.)
"Q. And this design or this [W]ork [R]equest doesn't have . . . Mr. Rojas'[s] signature; is that right?
"A. Correct.
"Q. It doesn't have a seal or stamp that's typically required of approved design[] plans; is that accurate?Pages 42 to 43 of the transcript read in part:
"A. Correct." (Underlining omitted.)
"Q. All right. So we've got the two lines [on the Work Request] that reflect the midblock crosswalk, we've talked about that, right?Pages 81 to 82 of the transcript read in part:
"A. Yes.
"Q. And then there are some . . . numbers with boxes around them, do you see that?
"A. Yes.
"Q. You see the one that has a 5 and a box around it?
"A. Yes.
"Q. What does that refer to?
"A. I believe if you look at the first page of the [Work Request] that's kind of faded out but it has boxes with numbers beside them on the left-hand side lower portion of the page, you can see No. 5 refers to the line that says, 'Install school crosswalk yellow.' On the more clear version you can't see the boxes but it's the same line.
"Q. Okay. So is it your understanding that box 5 refers to the directive to install a school crosswalk with yellow paint?
"A. Yes." (Underlining omitted.)
"Q. All right. And what's the reason why minimal[] installation of marked crosswalks is something that studies indicate is a good idea?Pages 88 to 89 of the transcript read in part:
"A. Basically the thought among traffic engineers is that as you have more and more crosswalks people are just crossing everywhere, there's no special emphasis so that both the pedestrian and the motorist is not as cognizant of a crossing area, it becomes routine, commonplace and then . . . may be ignored, potential for being ignored." (Underlining omitted.)
"Q. It is . . . [C]ity's policy not to paint crosswalks at midblock locations where traffic is not controlled by stop signs or traffic signals, do you see that?Page 92 of the transcript reads in part:
"A. Yes.
"Q. This is . . . City['s] . . . policy; is that right?
"A. Yes.
"Q. Does the midblock crosswalk that is the subject of this lawsuit violate that policy?
"A. It becomes an exception to the policy, in other words, it's not standard, you don't just go out and put a midblock without reason. [¶] . . . [¶]
"Q. Without yet getting to the exceptions does the midblock crosswalk at issue in this lawsuit violate that policy? [¶] . . . [¶]
"A. Does it violate the policy? It is not in conformance with the policy because it's an exception. [¶] . . . [¶]
"Q. Where in this, where in this informational pamphlet are the exceptions to this policy talked about?
"A. I would say the next sentence where it says, 'Painted crosswalks should only be used where necessary to direct pedestrians along the safest route.' " (Underlining omitted.)
"Q. So it's an accurate statement that the crosswalk where [Emma] was hit violated the policy that . . . [C]ity disseminated to the people of Bakersfield; is that true? [¶] . . . [¶]Page 109 of the transcript reads in part:
"A. True." (Underlining omitted.)
"Q. And then you continue on accordingly, I exercise my discretion and recommended approval of the original plans from a traffic engineering standpoint.
"A. Yes.
"Q. When you say you recommended your approval, is that to Mr. Rojas?
"A. Yes.
"Q. You don't actually approve them, you recommended approval to Mr. Rojas, true?
"A. Yes.
"Q. And Mr. Rojas is the one who has statutory . . . authority to actually make the approval; is that true?
"A. That's my understanding, yes." (Underlining omitted.)
ii. Testimony cited by City as opposing evidence.
Pages 110 to 111 of Walker's deposition transcript read in part:
"Q. Sometime after the original plans were approved and implemented new plans were drawn to provide for a midblock crosswalk across Jewetta Avenue approximately 500 feet south of Patrick Henry Drive (the 'crosswalk plans'), do you see that?
"A. Yes.
"Q. When you talk about new plans to provide for the midblock crosswalk you're referring solely to the [W]ork [R]equest[] . . . we've talked about?
"A. Yes.
"Q. True?
"A. True.
"Q. Now would you consider those to be plans? When you talk about new plans . . . are you referring to the [W]ork [R]equest form as 'new plans'?
"A. Yes.
"Q. Now does the [W]ork [R]equest form constitute a plan?
"A. It has a sketch and outline that would be a plan, it's not just a, simply a worded definition.
"Q. All right. You wouldn't consider it to be a design plan, we've talked about that, that's true?Pages 117 to 118 of the transcript read in part:
"A. Correct.
"Q. All right. But you consider it a different version of a plan, right?
"A. Yes.
"Q. Fair to say that this would be an add-on plan?
"A. Yes." (Underlining omitted.)
"Q. All right. Now you didn't really approve the crosswalk plans, you put your initials on them; is that true? [¶] . . . [¶]
"A. My initialing of the plans, the [W]ork [Request] was my approval. [¶] . . . [¶]
"Q. All right. So you're putting your initials on the [W]ork [R]equest form, that in your mind was you approving the [W]ork [R]equest?
"A. Yes." (Underlining omitted.)
b. January 26, 2016, deposition of Manuel Fuderanan.
i. Testimony cited by Emma in support of summary adjudication.
Pages 6 to 7 of Fuderanan's deposition transcript read in part:
"Q. What's your job title?Pages 24 to 25 of the transcript read in part:
"A. Engineer I.
"Q. How long have you had that job title?
"A. For the last, except for two years when I was detailed designing engineering, for the last 25 years, more or less." (Underlining omitted.)
"Q. Do you have a license with the State of California?
"A. No, sir.Page 43 of the transcript reads in part:
"Q. So you're not a licensed engineer; is that true?
"A. In California, yes, sir.
"Q. All right. Are you a licensed engineer in the Philippines?
"A. Yes, sir. [¶] . . . [¶]
"Q. Okay. But just so I'm clear, in the State of California you are not a licensed engineer?
"A. I am not a licensed engineer in California." (Underlining omitted.)
"Q. All right. Was it your understanding that Mr. Rojas was the only person . . . that could approve design plans?Pages 48 to 49 of the transcript read in part:
"A. Design plans, you mean - not necessarily in traffic alone.
"Q. Okay.
"A. Yes, sir.
"Q. Is that true?
"A. Yes, sir." (Underlining omitted.)
"Q. All right. Now there's no specific measurements [in the Work Request] about where specifically in relation to other objects the crosswalk should be installed; is that true?Page 52 of the transcript reads in part:
"A. No specific measurement.
"Q. You left it up to the discretion of Mr. Al[e]m[a]o and his crew on th[e] specifics, true?
"A. They know the specifics, they have the guidelines." (Underlining omitted.)
"Q. All right. Who other than you was a part of making the discretionary decision to place the midblock crosswalk we see on the sketch [on the Work Request] in the position where it is?Pages 54 to 55 of the transcript read in part:
"A. It was me who primarily recommended and then it was signed by Ryan [Starbuck], then it was - he agreed to it in some ways.
"Q. And the same with Mr. Walker, true?
"A. The same with Mr. Walker." (Underlining omitted.)
"Q. All right. And then I was asking you whether or not it was your sole discretion, I understand it was initialed by Mr. Walker and Mr. Starbuck, let's leave that out, okay, other than them, any other human being anywhere that was responsible for selecting this specific location where the midblock crosswalk is placed on the sketch schematic on the [W]ork [R]equest form?Pages 67 to 68 of the transcript read in part:
"A. No, sir.
"Q. Just you?
"A. Just me. [¶] . . . [¶]
"Q. Did you use any drafting equipment to make the sketches that you made?
"A. No, sir. I just used pen and straight edge." (Underlining omitted.)
"Q. Can you estimate for us how many hours you spent on the scene on Jewetta Avenue outside of Liberty High School when you did your field observations before putting together the [W]ork [R]equest form?
"A. I went there for the morning peak which lasted for about an hour approximately and then for the afternoon peak which lasted for another, about a[n] hour. [¶] . . . [¶]
"Q. All right. It was two hours and it was all on the same day?
"A. All on the same day." (Underlining omitted.)
ii. Testimony cited by City as opposing evidence.
Pages 15 to 23 of Fuderanan's deposition transcript read in part:
"Q. And what did [Ryan Starbuck] ask you to do?
"A. Prepare [the] [W]ork [R]equest for the installation and, of course, I d[id] some sort of field observation or study[.]
"Q. You did a field observation or a what?
"A. Study but not like study for other traffic installation.
"Q. How is it different from the other studies that you've done?
"A. Other Cal[T]rans specified studies . . . studies for a signal system is one of them, and . . . studies for an only stop whether this intersection is warranted or not, sort of something like that.
"Q. But you didn't do any of that when you prepared the [W]ork [R]equest at Mr. Starbuck's direction did you?
"A. I did.
"Q. What did you do?
"A. I did some field observations during the peak periods in the morning and in the afternoon. And also I observed [a] number of school pedestrians who cross the particular location. [¶] . . . [¶] . . . And also the number of vehicles or the gap sizes, adequate gap sizes at that particular location.
"Q. What's a gap size?
"A. The distance between vehicles. [¶] . . . [¶] . . . One passes one, then the next big vehicle passes, when the gap, the time gap between the two vehicles.
"Q. All right. So you did the field observation during peak periods, you measured the number of pedestrians who crossed during certain times?
"A. School pedestrians. [¶] . . . [¶]
"Q. People that look younger?
"A. People that look like students in the school. [¶] . . . [¶]
"Q. Sure. So you did the field observation during the peak periods, you did the number of school pedestrians who crossed during certain times, did you do any other studies?
"A. That's about it.
"Q. All right. Did you do those studies by yourself?
"A. Yes, sir. [¶] . . . [¶]
"Q. . . . The field observation during peak periods that you did, did you make any notes when you did that?
"A. Yes, sir.
"Q. Do you still have those?
"A. I don't think so now after the years.
"Q. What did you make notes about?
"A. The number of school pedestrians and the approximate . . . number of vehicles . . . during the peak period. [¶] . . . [¶]
"Q. . . . You did an analysis of how many school pedestrians crossed during school hours; is that true?
"A. Yes, sir. [¶] . . . [¶]
"Q. How many students crossed during the peak periods?
"A. More than 40.
"Q. How do you remember that?
"A. Because I counted.
"Q. And how long were you there counting?
"A. During the duration of the peak period.
"Q. Well, . . . what I'm talking about is how many hours.
"A. At least one hour.
"Q. Was this all done one time?Pages 26 to 27 of the transcript read in part:
"A. I did during the morning peak period and I also did another one during the afternoon peak period.
"Q. One day, though, true?
"A. One day. [¶] . . . [¶]
"Q. All right. Now were you following any traffic engineer division policies, procedures, practices while you were doing this field observation?
"A. Yes, sir. [¶] . . . [¶] I did the study and I recognize the guidelines set by Cal[T]rans traffic manual. I recognize the guidelines, engineering guidelines and using also engineering judgment." (Underlining omitted.)
"Q. . . . You exercise your engineering judgment to determine given the results of your pedestrian crossing and vehicular gap observations that a crosswalk could be placed in the area where it is now; is that true?Pages 30 to 31 of the transcript read in part:
"A. Yes, sir.
"Q. Were you the one that made the decision that the midblock crosswalk should be placed where it is today?
"A. Made a decision. I was the one who recommended and I'm not part, I'm not - I'm just a small fry so I didn't make the decision; my supervisors perhaps or my . . . traffic engineer.
"Q. All right. Did you talk to anyone in the traffic engineering division about the results of your vehicular gap and school age pedestrian crossing observations?
"A. Yes, sir.
"Q. Who did you talk to about it?
"A. I think I talked about it to Ryan Starbuck[,] my immediate supervisor at the time." (Underlining omitted.)
"Q. Does [the Work Request] look familiar to you?Page 32 of the transcript reads in part:
"A. Yes, sir.
"Q. All right. Did you prepare the sketch drawing?
"A. Yes, sir.
"Q. That's your handwriting?
"A. Yes, sir.
"Q. On the whole sketch?
"A. On the whole sketch except for the signatures by other people.
"Q. Sure. I understand that. Did you write Mr. Al[e]m[a]o's name at the top as well? [¶] . . . [¶]
"A. Yes, sir, I did. [¶] . . . [¶]
"Q. Perfect. So the only handwriting that's not yours are other people's signatures or initials; is that true?
"A. Yes, sir." (Underlining omitted.)
"Q. . . . All of the work request forms would go through Mr. Starbuck and Mr. Walker; is that true? [¶] . . . [¶]Page 39 of the transcript reads in part:
"A. At that time.
"Q. Of course.
"A. Yes.
"Q. Understood that those two gentlemen usually would approve the work request forms when they were finished, is that what you're getting at?
"A. Yes, sir." (Underlining omitted.)
"Q. As far as you know the only design plans of any sort that represent the midblock crosswalk at issue in this lawsuit is what you've circled on . . . the [W]ork [R]equest form; is that true?
"A. Yes, sir." (Underlining omitted.)
c. January 28, 2016, deposition of Ryan Starbuck.
i. Testimony cited by Emma in support of summary adjudication.
Page 6 of Starbuck's deposition transcript reads in part:
"Q. Mr. Starbuck, you're a current employee of . . . City . . . , true?Pages 14 to 15 of the transcript read in part:
"A. Yes.
"Q. What is your job title?
"A. City traffic engineer.
"Q. How long have you had that title?
"A. Just over seven years." (Underlining omitted.)
"[Q.] There are certain design plans that require the signature of a City employee that has authority to approve design plans. Is that true?
"A. Yes.
"Q. Now, in your declaration, there are what you call original plans and crosswalk plans. Is that right?
"A. Yes.
"Q. The original plans that you attached to your declaration, those are formal design plans, true?
"A. Yes.
"Q. Those required Mr. Rojas'[s] signature, true?
"A. Yes.
"Q. In the year 2000, Mr. Rojas was the only City . . . employee that had authority to approve formal design plans. Is that true?
"A. Yes.Pages 17 to 19 of the transcript read in part:
"Q. You didn't have that authority, did you?
"A. No.
"Q. Do you have that authority, as we sit here today?
"A. I have the authority where I sign for a recommended approval.
"Q. On a formal design plan there are several layers of signature approval. Is that true?
"A. Yes.
"Q. You've got recommended for approval and then you've also got actual approval, true?
"A. Yes.
"Q. So as we sit here today, you've got recommended approval authority, but not final actual authority for approval. Is that true?
"A. Correct.
"Q. So the original plans that you have attached to your declaration, those were approved by Mr. Rojas, true?
"A. Correct." (Underlining omitted.)
"Q. . . . . [¶] Mr. Rojas - we talked about this - he's the only City employee at the time that had the authority to formally approve a design plan, true?
"A. Correct.
"Q. And his signature is nowhere to be found on the [W]ork [R]equest?
"A. Correct. He has - he would not sign these work requests.
"Q. Those were not something that - Mr. Rojas typically wouldn't initial off on a work request. Is that true?
"A. Yeah, I don't know of him ever signing off on a work request. [¶] . . . [¶]Pages 46 to 47 of the transcript read in part:
"Q. Is your handwriting anywhere to be found on this document other than those two places, sir?
"A. My handwriting is scratching out the sign, the loading and unloading zone sign, and then I created the sign right next to it.
"Q. The no parking sign?
"A. Correct. [¶] And then also the scratching out on the last line install installation B. It's my scratching out. And then the corresponding numbers up on the diagram that have been scratched out were done by me.
"Q. Okay. So I got the scratch out of the loading and unloading zone only. That's you, right?
"A. Yes.
"Q. And then the box immediately to the left of that, you wrote everything within that box, true?
"A. Yes.
"Q. And then the four that's to the right of your box that you drew, is that yours? [¶] Do you see that?
"A. Yes.
"Q. That's your handwriting, right?
"A. Yes.
"Q. And then I understand that you crossed out a number of boxes that are on this sketch itself, true?
"A. Correct." (Underlining omitted.)
"Q. The original plans for Jewetta outside of Liberty High School did not include a mid-block crosswalk, true?
"A. Correct.
"Q. The [W]ork [R]equest that ended up resulting in the installation of the mid-block crosswalk at issue in this case, that was an add-on to the original plans, true?Pages 84 to 85 of the transcript read in part:
"A. I don't know if I'd refer to it as an add on. It was the first plan that showed the actual school signing. The original plan did not show any school signage or crosswalks.
"Q. So the original plan did not include the mid-block crosswalk?
"A. Correct.
"Q. The mid-block crosswalk was added on later, true?
"A. Correct." (Underlining omitted.)
"[Q.] Do you know how Mr. Alemao or somebody from his crew would know specifically where to place certain signs that are indicated on the sketch?
"A. Yes. Gilbert Alemao is very familiar with the California [Manual on Uniform Traffic Control Devices]. That's the procedure he would follow. [¶] As an example, the slow school crossings are placed a certain distance from the crosswalks. It's a standard distance. He would follow the [Manual on Uniform Traffic Control Devices] for that. The width of the crosswalks [is] standard width. The width of the painted line of the crosswalk is a standard width. The signs are only standard size, color, and lettering. So everything is standardized. He would just go back to the California [Manual on Uniform Traffic Control Devices].
"Q. All right. So in giving the [W]ork [R]equest to Mr. Alemao or somebody on his crew, the expectation is that he could take this handwritten sketch, translate it to the features that would follow the [Manual on Uniform Traffic Control Devices]?
"A. Correct. The only things that would be called out like the paved red curb 20 feet long, they would not know what length of red curb we wanted. We would actually specify a dimension. Everything would just be to standard.
"Q. Do you know whether or not Mr. Alemao is a licensed engineer?
"A. He is not.Page 120 of the transcript reads in part:
"Q. So is it fair to say that the City employee that drew the sketch for the mid-block crosswalk that we see in front of us, those two lines, and the City employee that installed the mid-block crosswalk, neither one of them are licensed engineers, true?
"A. Correct." (Underlining omitted.)
"Q. It is . . . City's policy not [t]o paint crosswalks at mid block locations where traffic is not controlled by stop signs or traffic signals. [¶] Do you see that?Page 139 of the transcript reads in part:
"A. Yes.
"Q. Is that true?
"A. That is true.
"Q. And that's . . . City['s] . . . policy?
"A. That's the California [Manual on Uniform Traffic Control Devices] policy -
"Q. Which the -
"A. - in which . . . City follows." (Underlining omitted.)
"Q. And then you say in your declaration in the next sentence, accordingly, I exercised my discretion and recommended approval of the crosswalk plans from a traffic engineering standpoint. [¶] Do you see that?
"A. Yes.
"Q. By recommending approval, what you mean by that is that you initialled [sic] it, true?
"A. Yes. That's my approval that I reviewed the plan.
"Q. Right. And you . . . . [¶] . . . recommended approval to Mr. Walker, true?
"A. Correct." (Underlining omitted.)
ii. Testimony cited by City as opposing evidence.
Pages 15 to 17 of Starbuck's deposition transcript reads in part:
"Q. And you call [the original plans attached to] your declaration crosswalk plans. Isn't that right?Pages 77 to 78 of the transcript read in part:
"A. Yes.
"Q. Now, those crosswalk plans, they were included on a form document called a work request, true?
"A. Correct.
"Q. And is it your testimony that you gave any kind of formal approval of th[e] [W]ork [R]equest?
"A. Yes. With the capacity I was in, I was the E-3 supervising engineer, the supervisor of Manuel [Fuderanan], who has produced th[e] [W]ork [R]equest. I initialled [sic] that I've reviewed it and approved it. And then also on there is Steve Walker's initials that he reviewed and approved it. [¶] . . . [¶]
"Q. Okay. Now, there's no seal on this document, true?
"A. True.
"Q. You don't see Mr. R[oja]s'[s] signature on this document, true?
"A. Correct." (Underlining omitted.)
"Q. . . . . [¶] The [W]ork [R]equest that we've been looking at together, would you consider that to be a design plan?
"A. Yes. It's a type of design plan showing the signage that's necessary for the plan and the locations, the stripes. It's showing the pavement markings are needed. It's got a north arrow and streets labelled, which is typical of the formal design plan. It's just rather than being produced on a computer-drafted document for the savings of time, it's just done by hand and since the work is being done by City crews, a formal plan with a stamp on it is not generated.
"Q. Okay. So you would consider it a design plan, just a variation of one?
"A. Correct." (Underlining omitted.)
d. January 28, 2016, deposition of Gilbert Alemao.
i. Testimony cited by Emma in support of summary adjudication.
Page 38 of Alemao's deposition transcript reads in part:
"Q. Did you rely on anything other than the two lines that are drawn here on the sketch in order to place the crosswalk where you did?
"A. Yes. It's part of the process, part of the guidelines on the [Manual on Uniform Traffic Control Devices] that show how crosswalks are painted." (Underlining omitted.)
e. April 1, 2016, deposition of Raul Rojas.
i. Testimony cited by Emma in support of summary adjudication.
Page 11 of Rojas's deposition transcript reads in part:
"Q. So the whole time you worked for . . . City . . . you were the Director of Public Works, true?Pages 18 to 19 of the transcript read in part:
"A. Yes.
"Q. And that was almost 20 years?
"A. Correct.
"Q. The . . . [W]ork [R]equest . . . that you saw before you came here to testify, had you ever seen it before?
"A. No.
"Q. First time?
"A. Yes.
"Q. Did you have any involvement in approving that document?
"A. No." (Underlining omitted.)
"Q. Approval of a formal design plan could only be done by you when you were the Public Works Director, true?Page 20 of the transcript reads in part:
"A. Yes. And/or my designee.
"Q. . . . . [¶] So it could either be yourself that could approve a formal design plan, or somebody that you anointed with that power?
"A. That's correct.
"Q. Did you ever do that, give somebody else the power to approve a design plan?
"A. Yes.
"Q. When you did that, when you worked for . . . City . . . , how would you execute that power sharing or conferring that power upon someone?
"A. Generally if . . . I was out of town on leave, vacation, it was generally my assistant director. [He] w[as] given that authority. [¶] . . . [¶]
"Q. In the year 2000, who was that person?
"A. I think that was Jack LaRochelle. [¶] . . . [¶]
"Q. What was his job title back then in 2000?
"A. I think he was the assistant director.
"Q. Assistant Public Works Director?
"A. Yes." (Underlining omitted.)
"Q. Okay. Other than Mr. LaRochelle around the year 2000, would anybody else have the authority to approve design plans?Pages 24 to 25 of the transcript read in part:
"A. Yes, it's conceivable. But I don't recall if I did or didn't. I don't recall if Jack and I were gone at the same time. If that had happened, then yes, I would have given it to someone else."
"Q. Can you think of a single instance when you were Public Works Director for . . . City . . . that a public street was built using a work request?Pages 31 to 32 of the transcript read in part:
"A. No, I don't recall.
"Q. It was always a formal design plan, right?
"A. Yes.
"Q. And then if additions were made to a formal design plan, that would be by way of work request that was an add-on to that formal design plan; is that true?
"A. It was one of the methods, not always what we did.
"Q. Like . . . in this case[,] we've got a mid-block crosswalk that was put onto a public street after it was built, right?
"A. Yes.
"Q. And the mid-block crosswalk wasn't a part of the initial design plan; is that accurate?
"A. Yes.
"Q. Would you characterize the mid-block crosswalk that was later added to be an add-on to that formal design plan?
"A. You know what, you could characterize it that way. . . . [I]t was an addition that was done to a public street.
"Q. Right. So . . . it was a feature to a public street that was added on after the formal design plan and construction of the street, true?
"A. After the roadway was accepted, yes." (Underlining omitted.)
"Q. All right. A formal design plan, you've got to have a signature by someone with statutory authority to approve a design plan, true?
"A. Correct.
"Q. And for most of the time while you were the Public Works Director that was you?Page 48 of the transcript reads in part:
"A. Yes." (Underlining omitted.)
"[Q.] 'It is . . . City's policy not to paint crosswalks at midblock locations where traffic is not controlled by stop signs or traffic signals.' [¶] Do you see that?Page 52 of the transcript reads in part:
"A. Yes.
"Q. That was . . . City's policy when you were the Public Works Director, true?
"A. True.
"Q. And then it says, 'Painted crosswalks should only be used where necessary to direct pedestrians along the safest route;' is that right?
"A. Correct." (Underlining omitted.)
"Q. You were the sole person with statutory authority to approve design plans; is that right?Page 57 of the transcript reads in part:
"A. Formal design plans. [¶] . . . [¶]
"Q. . . . If it wasn't you, it was somebody you anointed with the sole power to approve design plans, is that true?
"A. That's correct." (Underlining omitted.)
"Q. And when you install a mid-block crosswalk . . . , by definition, you're not following the general rule; is that true?
"A. By definition, that's correct.
"Q. All right. But when they are installed, that's when . . . City policy we've been looking at together . . . , that's when it applies, true?
"A. When they are installed?
"Q. Right. When . . . City makes the decision to actually install a mid-block crosswalk, that's when . . . City policy about mid-block crosswalks would apply, true?Page 67 of the transcript reads in part:
"A. It would apply in general terms, yes." (Underlining omitted.)
"Q. Do you know why a formal design plan was not used to put the mid-block crosswalk at issue in this case in?
"A. Probably in general . . . , it was because [it] w[as] a lot less expensive and it's something that we can install very quickly. The design - the formal design process requires a design, going out to bid, award contract, and it's time consuming." (Underlining omitted.)
ii. Testimony cited by City as opposing evidence.
Pages 11 to 14 of Rojas's deposition transcript read in part:
"Q. [The Work Request is] not a design plan, is it?
"A. In some ways it is. It's a plan that was used for, for our staff.
"Q. Okay. But let's be very clear. The [W]ork [R]equest that you saw that you prepared for this deposition, it's not a formal design plan, is it?
"A. It's not a formal design plan, no.
"Q. And in fact it's not a design plan in any stretch of the imagination, is it?
"A. I'm not sure I would agree with that.
"Q. Okay. Tell me all the reasons why the [W]ork [R]equest is a design plan?
"A. It's a plan that is used by our staff, a typical plan for work orders that are given to our staff. It's giving them directions as to what they are supposed to do. [¶] . . . [¶]
"Q. . . . What's your definition of a design plan?
"A. It's a plan that gives someone direction on what to do on a construction project or otherwise.
"Q. So that's your broad definition of what a design plan is?
"A. Yes.
"Q. . . . [D]oes a design plan have to be approved by - when you were working . . . [for] City . . . , is there a category of [C]ity employee that could approve a design plan?
"A. Yes.
"Q. Who is that?
"A. It would vary, depending on what the situation was. If it was a formal bid, I would sign it or my designee. In my absence someone would have the authority to do that. If it was a work order request that went to the maintenance crews as staff, it was generally signed by one of the other engineers.
"Q. The [W]ork [R]equest that you looked at before coming here to testify, was that approved by anybody?
"A. Yes, it was.
"Q. Who approved it?
"A. It looked like . . . Ryan [Starbuck] and Steve Walker.
"Q. Did . . . those individuals back then have the authority to approve that [W]ork [R]equest?
"A. Yes.
"Q. You never looked at it or approved it, true?
"A. That's correct.
"Q. All right. And it's a handwritten sketch, right?
"A. That's correct.
"Q. And is a handwritten sketch something that could be a design plan?
"A. For the purposes of what it was intended for, yes.
"Q. It was intended to install a crosswalk in a school zone, right?
"A. Yes." (Underlining omitted.)Page 43 of the transcript reads in part:
"Q. Do you understand [the Work Request] to be what [Starbuck]'s referring to as the crosswalk plans?Pages 49 to 51 of the transcript reads in part:
"A. Yes.
"Q. All right. Have you ever before referred to a [W]ork [R]equest as an actual plan?
"A. Yeah, I think so.
"Q. Can you remember a specific project?
"A. No." (Underlining omitted.)
"Q. Is it fair to say that . . . the mid-block crosswalk . . . violated that [crosswalk installation] policy that we just looked at together; is that true?
"A. Well, I'm not sure I would characterize it a violation of the policy. It's something we'd like to try not to do. But there are exceptions to the rules. And generally around schools we see mid-blocks, crosswalks, generally.
"Q. Okay. Let me ask it this way. What we just read, you said that's . . . City's policy; is that right?
"A. Correct.
"Q. And the crosswalk that you saw is not in compliance with the policy; is that right?
"A. I think there are exceptions, there are allowed exceptions to be made, and that's probably what happened.
"Q. Okay. Let's leave the exceptions aside. I know you want to talk about those. But let's just focus on the policy and whether or not the mid-block crosswalk that you saw a picture of in preparation for your testimony met with that policy. You can talk about the exceptions later. [¶] Did the mid-block crosswalk . . . follow the policy of . . . City . . . not to
paint crosswalks at mid-block locations where traffic is not controlled by either stop signs or traffic signals?
"A. As you defined it, yes. [¶] . . . [¶]
"Q. I think it's a little . . . unclear. So it is correct that as I defined . . . City's policy . . . , the mid-block crosswalk . . . did not conform to that policy; is that true?
"A. That's true.
"Q. What's the reasoning behind . . . City['s] policy that's in this informational brochure distributed to the public?
"A. It's a general rule that we try not to put mid-block crosswalks in, but there are exceptions." (Underlining omitted.)
f. Rojas's declaration.
Eight months after his deposition, Rojas averred in a declaration filed December 13, 2016:
"8. As the Director of Public Works , during my tenure from 1994 to 2014 , I was vested with discretionary authority to approve plans and designs relating to the construction and/or improvement of streets and roads within the City of Bakersfield , including the placement and construction of crosswalks and appropriate signage. (See Bakersfield Municipal Code Sections 13.12.040 and 13.12.050)
"9. The section of road on Jewetta Avenue [at issue] was constructed in or around 1997 to 1998 in conjunction with the construction of Liberty High School. Prior to construction commencing, formal design plans for the area were prepared in or about 1997 ('Original Design Plans'). . . . [¶] . . . [¶]
"16. . . . [O]n or about September 12, 2000, Mr. Fuderanan prepared/drafted a written supplemental design/plan for the installation of the crosswalk[] ('Supplemental Crosswalk Design Plan'). . . .
"17. I am informed and believe that after the Supplemental Crosswalk Design Plan was prepared, but before construction of the crosswalk commenced, the Supplemental Crosswalk Design Plan was reviewed and approved and/or recommended for approval by Mr. Walker and (separately) . . . licensed civil engineer, Ryan Starbuck.
"18. Since the Supplemental Crosswalk Design Plan related solely to traffic control issues, Mr. Walker and Mr. Starbuck (who are both in the Traffic Division) had discretionary authority, approved by me, to approve the Supplemental Crosswalk Design Plan as my delegated and authorized designees under Bakersfield Ordinance No. 3885, approved March 17, 1999 and Bakersfield Municipal Code, Chapter 2, Section 12.020 and Chapter 13, Sections 12.040 and 12.050. . . .
"19. On this point, I am informed and believe that there is some confusion in this case as to who is authorized to approve 'formal design plans' . . . and who is authorized to approve 'supplemental design plans' . . . - and why they are different. In an attempt to clarify the confusion, the Public Works Director, or his/her 'authorized designee,' is the only person who can approve formal design plans . . . . Individual department heads, such as Mr. Walker in the Traffic Division, cannot approve formal design plans. The reason for this is because formal design plans typically include plans and designs from multiple Departments and/or Divisions within Public Works. As an example, in the Original Design Plan in this case . . . , the Plan included designs involving street, storm drain and sewer improvements. Thus, Mr. Walker, as the Traffic Engineer, would not be qualified to approve plans or designs outside of his Division. The Public Works Director, who oversees all Departments and Divisions within Public Works, would be the only person authorized to [ap]prove such formal design plans. Conversely, as noted above, Mr. Walker did have discretionary authority (at that time, as my 'authorized designee') to approve plans that relate solely to issues within his Division, such as the Supplemental Crosswalk Design Plan at issue here . . . .
"20. I did not review or approve the Supplemental Crosswalk Design Plan prior to the construction/installation of the crosswalks at issue. However, upon reviewing the Supplemental Crosswalk Design Plan after-the-fact, I have concluded that it is a reasonable design plan that I could have (and would have) adopted and approved. This determination is based on the following:
"A. The Supplemental Crosswalk Design Plan . . . was/is sufficiently detailed to show compliance with the then applicable standards, including the positioning and location of pertinent signage, road markings, etc. As such, I consider the Supplemental Crosswalk Design Plan . . . a sufficient 'plan or design of construction of, or an improvement to, public property';
"B. The Supplemental Crosswalk Design Plan conformed with the then applicable traffic safety standards which, at that time, was the [Caltrans] Traffic Manual, specifically Chapter 10, 'School Area Pedestrian Safety,' Sections 03-06 . . . . Specifically:
"i. Midblock crosswalks in school zones are authorized and in certain situations such as this, encouraged . . . ;
"ii. The Supplemental Crosswalk Design Plan . . . correctly specifies the location of the crosswalk at issue and states that it shall be marked in 'yellow' paint . . . ;
"iii. The Supplemental Crosswalk Design Plan correctly specifies the location and installation of 'Installation C' - School Speed Limit 25 When Children Present - signs W65, R2, and R72 . . . ;
"iv. The Supplemental Crosswalk Design Plan correctly specifies the location and installation [of] 'red' curb markings - '20[ feet] long' within and next to the crosswalk location . . . ;
"v. The Supplemental Crosswalk Design Plan correctly specifies the location and installation of the street symbol markings 'SLOW SCHOOL XING' on both sides of the street approaching the crosswalk . . . ; and,
"vi. There are no required and/or mandatory standards missing from the Supplemental Crosswalk Design Plan that would render the crosswalk unsafe. [¶] . . . [¶]
"21. Based on the foregoing, the Supplemental Crosswalk Design Plan . . . was prepared in conformity with standards previously so approved by [City] ; specifically, the above-referenced CalTrans Traffic Manual . . . that was approved by City Council on or about March 17, 1999 as the 'adopted . . . standards and specifications.' "
City also submitted the December 13, 2016, declaration of Nick Fidler, City's public works director since March 24, 2014. Fidler's declaration is essentially a carbon copy of Rojas's declaration in all material respects.
III. Motion for summary adjudication.
On October 5, 2016, Emma moved for summary adjudication of City's design immunity defense. She argued City "never had a design plan for the crosswalk"; City "admitted that no person authorized under Government Code section 830.6 to approve design plans on its behalf reviewed or approved a design plan for the crosswalk"; and "[t]here are no triable issues of material fact with respect to the existence of a design plan or approval of a reasonable design plan for the [crosswalk]." On December 13, 2016, City filed its opposition. It countered it was entitled to design immunity because a plan or design for the crosswalk had been approved by Walker, who was given discretionary authority by Rojas to give such approval, and/or was prepared in conformity with the CalTrans Traffic Manual.
On January 12, 2017, the superior court conducted a hearing on Emma's motion. At the outset, it remarked:
"We have the [W]ork [R]equest which is interchangeably referred to, depending upon the party, as a . . . crosswalk design plan.Following oral argument by the parties, the matter was submitted. In a minute order dated January 25, 2017, the court granted Emma's motion and directed her to prepare a proposed order. The proposed order was submitted on March 22, 2017, and signed by the court on April 11, 2017. It reads:
". . . I have two things. One, it appears that based upon the depositions of Starbuck and Walker, that they are on opposite sides of the issue as to whether or not it was a design plan, those being the . . . [C]ity traffic engineers. . . . [O]ne stating that it was a design plan and the other stating in deposition it was not a design plan and might at best be looked upon as an add-on. . . .
"And then the other issue is, as far as I can tell, Mr. Rojas, the former authorized City representative to review and approve is - does not appear that there was any sort of a referral to or delegation of authority as might arise in a given case to either Starbuck or Walker for purposes of . . . reviewing and granting approval as a design plan."
"IT IS HEREBY ORDERED that Plaintiff's motion for summary adjudication of the design immunity defense . . . is GRANTED. There is no triable issue of material fact with respect to the existence of a 'plan or design,' nor that any 'plan or design' was subjected to the approval of . . . City or . . . City's authorized representative with discretionary authority to approve.
"Furthermore, the 'Work Request' alleged to be a design plan by . . . City . . . was not a 'plan or design.' Additionally, . . . City's evidence does not, and cannot, demonstrate a 'plan or design' prepared in conformity with previously approved standards. . . ."
On February 7, 2017, before the proposed order granting Emma's summary adjudication motion was submitted and signed, City requested "reconsideration." Its motion referred to "new facts" that were not set forth in either party's separate statement of undisputed facts. (See ante, fn. 2.) At a March 6, 2017, hearing, the court tentatively denied City's request and gave the parties an opportunity to respond. Following oral argument by the parties, the tentative ruling became final.
In its writ petition, City acknowledges its motion, though filed pursuant to Code of Civil Procedure section 1008, subdivision (a), "was technically not a motion for reconsideration because Respondent Court had not yet entered a formal order granting Plaintiff's summary adjudication motion."
DISCUSSION
I. Overview of summary adjudication.
Code of Civil Procedure section 437c, subdivision (f)(1), allows a party to move for summary adjudication "as to . . . one or more affirmative defenses . . . if the party contends that . . . there is no affirmative defense to the cause of action, . . . [or] there is no merit to an affirmative defense as to any cause of action . . . ." " 'A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion. . . . [Citations.]' [Citation.]" (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 631, fn. 1; accord, Code Civ. Proc., § 437c, subd. (f)(2).)
"When a plaintiff moves for summary adjudication on an affirmative defense, the court shall grant the motion 'only if it completely disposes' of the defense. [Citation.] The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense. [Citations.]" (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 899-900, italics omitted.) "If the plaintiff does not make this showing, ' "it is unnecessary to examine the [defendant's] opposing evidence and the motion must be denied." ' [Citation.] ' "However, if the moving papers establish a prima facie showing that justifies a [ruling] in the [plaintiff's] favor, the burden then shifts to the [defendant] to make a prima facie showing of the existence of a triable material factual issue." ' [Citation.]" (Id. at p. 900.)
"There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar), fn. omitted; see Conservatorship of Wendland (2001) 26 Cal.4th 519, 546 ["The default standard of proof in civil cases is the preponderance of the evidence."]; In re Michael G. (1998) 63 Cal.App.4th 700, 709-710, fn. 6 [preponderance-of-the-evidence standard requires trier of fact to believe the existence of a fact more probable than its nonexistence].) "[F]rom commencement to conclusion, the [movant] bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment [on the defense] as a matter of law." (Aguilar, supra, at p. 850, fn. omitted.)
Whereas a burden of production entails only the presentation of evidence, a burden of persuasion entails the establishment of a requisite degree of belief by way of such evidence. (Aguilar, supra, 25 Cal.4th at p. 850.)
II. Standard of review.
"When reviewing the grant of a motion for . . . summary adjudication, we independently consider whether a triable issue of material fact exists and whether the moving party is entitled to summary . . . adjudication as a matter of law." (Haney v. Aramark Uniform Services, Inc., supra, 121 Cal.App.4th at p. 631, fn. omitted.) "In other words, we must assume the role of the trial court and reassess the merits of the motion. [Citation.] In doing so, we will consider only the facts properly before the trial court at the time it ruled on the motion. [Citation.]" (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.)
"We apply the same three-step analysis required of the trial court. First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond. Second, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in the moving party's favor. When a summary [adjudication] motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable issue of material fact." (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493-494.)
"Our obligation is ' " 'to determine whether issues of fact exist, not to decide the merits of the issues themselves.' " ' [Citation.] We must ' "consider all of the evidence" and "all" of the "inferences" reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.' [Citations.]" (See's Candy Shops, Inc. v. Superior Court, supra, 210 Cal.App.4th at p. 900.) "Summary adjudication is a drastic remedy and any doubts about the propriety of a summary adjudication must be resolved in favor of the party opposing the motion." (Ibid.)
III. Analysis.
a. Overview of the design immunity defense.
"A public entity may be liable for injuries caused by dangerous conditions of public property." (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 342-343, fn. omitted (Hampton), citing Gov. Code, §§ 830, 835.) "An entity may avoid liability, however, through the affirmative defense of design immunity." (Hampton, supra, at p. 343, citing Gov. Code, § 830.6.) "The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design." (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 69.) " ' " '[T]o permit reexamination in tort litigation of particular discretionary decisions where reasonable men 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.' " [Citation.]' [Citation.]" (Ibid.)
Government Code section 830.6 reads in pertinent part:
"Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor."Thus, a public entity claiming design immunity must establish three elements. First, the plan or design of the construction or improvement caused the accident. (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 69.) Second, the plan or design was either approved prior to the construction or improvement by a person or entity vested with the discretionary authority to give such approval or prepared in conformity with standards previously approved. (See Hampton, supra, 62 Cal.4th at p. 350; see also Martinez v. County of Ventura (2014) 225 Cal.App.4th 364, 373 (Martinez); Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, 59.) Finally, substantial evidence supported the reasonableness of that which was approved. (See Gov. Code, § 830.6; see also Alvarez v. State of California (1999) 79 Cal.App.4th 720, 727-728 ["The trial court applies the deferential 'substantial evidence' standard traditionally employed by reviewing courts to determine whether any reasonable state official could have approved the challenged design."].) "The second statutory element . . . must occur first in chronological order. It is a vital precondition of the design immunity." (Johnston v. County of Yolo (1969) 274 Cal.App.2d 46, 52.)
b. Plan or design.
"There is no requirement that the design be expressed in any particular form. The plan need only be sufficiently explicit to assure that it is understandable to the employee giving the approval." (Thomson v. City of Glendale (1976) 61 Cal.App.3d 378, 385 (Thomson); accord, Martinez, supra, 225 Cal.App.4th at p. 370.) In view of this "low standard" (Martinez, supra, 225 Cal.App.4th at p. 370), we conclude there is a triable issue of material fact with respect to the existence of a "plan or design." Walker, City's highest-ranked traffic engineer, testified the Work Request was "an application of an established standard for installation and incorporation into a public street" rather than a "design plan." Later, however, he acknowledged the Work Request "ha[d] a sketch and outline that would be a plan . . . ." Rojas, the public works director, testified the Work Request, though consisting of a "handwritten sketch" of the crosswalk and "not a formal design," was nonetheless "a plan that is used by . . . staff" "giving them directions as to what they are supposed to do." Starbuck, a traffic engineer and Walker's subordinate, referred to the Work Request as "a type of design plan" and "crosswalk plans." He also pointed out Fuderanan's sketch on the Work Request showed the "signage," "locations," "stripes," "pavement markings," "north arrow," and "streets" necessary for the crosswalk installation.
Emma cites Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451, which is not dispositive on this issue. In that case, the city implemented certain safety features to a crosswalk pursuant to approved plans. (Id. at p. 1454.) Sometime after these improvements were completed, a city employee purchased and issued a work order to install a pedestrian warning beacon, which was not a part of the approved plans. (Id. at pp. 1454, 1456.) There were no details about the work order's content. The beacon later became the subject of a personal injury lawsuit. (See id. at pp. 1453-1454.) The city filed a motion for summary judgment on the basis of design immunity, which was granted by the trial court. (Id. at p. 1455.) Division Six of the Second Appellate District reversed the trial court's order. (Id. at pp. 1453, 1460.) It held the beacon was an "[a]dd-on[]" that was "not part of the approved plan or design and . . . installed after the public works project [wa]s approved" and, therefore, "d[id] not come under the umbrella of design immunity." (Id. at p. 1453.) The appellate court reiterated "approval of an actual plan or design is required to establish the affirmative defense of government design immunity. (Ibid., italics added; accord, id. at pp. 1457, 1460.)
In the instant case, the Work Request containing Fuderanan's sketch of the crosswalk may sufficiently evince an actual plan or design.
c. Prior approval.
i. Approval of the plan or design by a person vested with the discretionary authority to give such approval.
" 'In the affairs of a public entity (e.g., a county, city or public district) the locus of discretionary authority is fixed by law.' [Citation.] Accordingly, we look to 'the law fixing the public entity's internal distribution of powers to discern whether the legislative body or, alternatively, some administrative board or officer, exercise[s] discretionary approval authority for the purpose of [Government Code] section 830.6.' [Citations.]" (Martinez, supra, 225 Cal.App.4th at p. 371.) "[T]he public entity claiming design immunity must prove that the person or entity who made the decision is vested with the authority to do so. Recognizing 'implied' discretionary approval would vitiate this requirement and provide public entities with a blanket release from liability that finds no support in [Government Code] section 830.6." (Martinez, supra, at p. 373.) "[A] public entity seeking design immunity must establish the discretionary approval element of the defense, even if the project is [one] for which formal plans are not customarily prepared." (Ibid.)
Here, the Work Request was initialed by Walker and Starbuck. Walker testified he "made recommendations for approval of plans" in his capacity as City's highest-ranked traffic engineer. However, he did not have any "statutory" authority to approve design plans. Starbuck, Walker's subordinate, similarly testified he had "recommended approval authority" but "not final actual authority." Rojas testified the Work Request, which he did not see or sign prior to the installation of the crosswalk, was "not a formal design plan." He specified he or his chosen designee, i.e., the assistant public works director, had "statutory authority" to approve "formal" design plans. As for "work order request[s]," Rojas testified they were "generally signed by one of the other engineers." Starbuck corroborated Rojas "would not sign . . . work requests," adding he never "kn[e]w of [Rojas] ever signing off on a work request." Rojas asserted both Walker and Starbuck "ha[d] the authority to approve" the Work Request but did not disclose the legal source of said authority.
Subsequently, sections of City's municipal code were offered as the law fixing discretionary authority to approve the Work Request. In our view, sections 13.12.040 and 13.12.050 do not explicitly grant such authority: the former charges "[t]he Public Works Director/City Engineer, or his authorized designee" "with interpreting, applying and enforcing the development improvement standards and specifications " and the latter gives the public works director or his designee "the authority to provide for modifications of" these development improvement standards and specifications. (Cf. Thomson v. City of Glendale, supra, 61 Cal.App.3d at p. 384 [city charter explicitly bestowed public works department with discretionary authority to maintain city-owned facilities].) Section 2.12.020 states a deputy city engineer or deputy street superintendent "shall, in the absence of the principal officer in the respective office[] or department[] to which the deputy city engineer is appointed, or at the request of the principal officer, do and perform any and all acts necessary to the office, for and on behalf of the principal officer . . . ." Admittedly, this provision appears to empower a "principal officer" (presumably Rojas) to delegate to a deputy city engineer or deputy street superintendent (presumably Walker and/or Starbuck) the authority to "do and perform any and all acts necessary to" the principal officer's post. Based on Rojas's and Starbuck's deposition testimonies, however, Rojas did not handle work requests, signifying the discretionary approval thereof was not a "necessary" part of his job and would not have fallen within the scope of any delegation. Furthermore, when Rojas was asked about whom he would have authorized as designees during the period the crosswalk in question was installed, Rojas never mentioned Walker or Starbuck. (Cf. Thomson v. City of Glendale, supra, at p. 384 [public works director testified he delegated responsibility for maintaining city facilities to the superintendent of maintenance].) In any event, one cannot "methodically trace[] [a] path of discretionary authority from" these municipal code sections to Walker or Starbuck. (Martinez, supra, 225 Cal.App.4th at p. 372.)
We are mindful Rojas provided a contradictory declaration eight months after his deposition. In it, he claimed he "was vested with discretionary authority to approve plans and designs"—without regard to formality—"relating to the construction and/or improvement of streets and roads . . . , including the placement and construction of crosswalks and appropriate signage" under sections 13.12.040 and 13.12.050 of City's municipal code. (Boldface & italics omitted.) Rojas also claimed Walker and Starbuck "had discretionary authority . . . to approve the Supplemental Crosswalk Design Plan as [his] delegated and authorized designees" under sections 2.12.020, 13.12.040, and 13.12.050 of the code. "[A] party cannot create an issue of fact by a declaration which contradicts his prior discovery responses." (Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12.) "[A]dmissions against interest have a very high credibility value. This is especially true when . . . the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment [or adjudication], of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits." (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22.)
"Supplemental Crosswalk Design Plan" is a phrase used by Rojas in his post-deposition declaration to describe the Work Request. (See ante, at pp. 6, 32.)
ii. Preparation of the plan or design in conformity with standards previously approved.
At best, it is unclear whether City's policy against painting midblock crosswalks where traffic is not controlled by stop signs or traffic signals was based on a previously approved standard. The record indicates City derived the policy from the California Manual on Uniform Traffic Control Devices, but this manual was not identified as one of the 24 adopted standard manuals in section 13.12.030 of City's municipal code. As a result, we will not consider this policy in this portion of the analysis.
Government Code section 830.6 "permits, as [an] alternative, that the discretionary approval element may be established through proof that the design complies with discretionarily approved standards . . . ." (Hampton, supra, 62 Cal.4th at p. 350; see Weinstein v. Department of Transportation, supra, 139 Cal.App.4th at p. 59 ["Design immunity extends to plans that are 'in conformity with' . . . approved standards even when those plans have not been specifically approved."].)
Alemao, the City employee who installed the crosswalk, testified he relied on the Manual on Uniform Traffic Control Devices for guidance. Section 13.12.030, subsection B, of City's municipal code established the adoption of the 1988 Federal Highway Administration Manual on Uniform Traffic Control Devices as one of 24 development improvement standards and specifications. Section 3B-18 of this manual required crosswalk lines to be painted "solid white." By contrast, the Work Request called for the crosswalk to be painted yellow.
City countered the Work Request conformed to the 1996 CalTrans Traffic Manual. Section 10-04.3 of this manual states that "marked pedestrian crosswalk[s] . . . in a roadway contiguous to a school building or the grounds thereof" "shall be painted or marked in yellow." (Boldface & italics omitted.) However, City adopted the 1992 edition (see ante, at p. 4) and the record does not supply a corresponding provision. Even assuming, arguendo, both versions of the CalTrans Traffic Manual called for yellow crosswalk lines, this evidence did not demonstrate a triable issue with respect to the Work Request's nonconformity with the "solid white" requirement set forth in the 1988 Federal Highway Administration Manual on Uniform Traffic Control Devices.
City argues that "[e]vidence that the Work Request conformed to at least one set of standards adopted by the City . . . is sufficient to create a triable issue of material fact" and "[i]t should not matter that [it] adopted several alternative standards that City officials could look toward." We refuse to endorse such a shotgun approach, especially where, as here, approved standards on the same subject matter are at odds. We believe the onus should be on the public entity claiming design immunity to resolve conflicting standards beforehand.
In fact, it appears City had a mechanism in place to address conflicting standards. As noted, section 13.12.050 of City's municipal code allows the public works director or an authorized designee to modify adopted development improvement standards and specifications "[w]here there are practical difficulties involved in carrying out the provisions of the standards and specifications." The procedure requires the public works director or the designee to (1) find that a special individual reason makes the strict letter of these standards and specifications impractical; (2) find that modification is in conformance with the intent and purpose of these standards and specifications and does not lessen any public safety requirement; and (3) record and enter any modification in the files of the public works department. (See ante, at p. 4.) No evidence suggests this mechanism was utilized.
IV. Conclusion.
Emma satisfied her burden and presented prima facie evidence that the Work Request was neither approved by a person vested with the discretionary authority to do so nor prepared in conformity with a previously approved standard, i.e., the 1988 Federal Highway Administration Manual on Uniform Traffic Control Devices. On the other hand, City could not produce sufficient evidence demonstrating a triable issue of material fact. The design immunity defense fails as a matter of law. Accordingly, we find the superior court properly granted Emma's summary adjudication motion.
DISPOSITION
The order of the superior court is affirmed. Costs are awarded to real party in interest Emma K. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
SNAUFFER, J.