Opinion
B291463
03-17-2020
HEATHER DIB, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.
DiDonato Law Center and Peter R. DiDonato for Plaintiff and Appellant. George L. Mallory, Jr. & Associates and George L. Mallory, Jr. for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC612155) APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen P. Pfahler, Judge. Affirmed. DiDonato Law Center and Peter R. DiDonato for Plaintiff and Appellant. George L. Mallory, Jr. & Associates and George L. Mallory, Jr. for Defendant and Respondent.
____________________
Heather Dib appeals the judgment entered in her premises liability action after the trial court granted summary judgment in favor of the County of Los Angeles. Dib primarily contends triable issues of material fact exist as to the applicability of the County's design immunity defense, which the court ruled barred her claim. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Dib's Complaint
While walking on the campus of the Olive View-UCLA Medical Center in Sylmar from the emergency room to the mental health clinic, Dib stepped off a "too-high curb," which she claimed violated applicable building codes, and injured her ankle. After filing an administrative claim for damages with the County and receiving no response within the statutory time period, Dib filed the instant action for premises liability, contending the curb constituted a dangerous condition of public property under Government Code section 830.
Statutory references are to this code unless otherwise stated.
2. The County's Motion for Summary Judgment
a. The County's moving papers
The County moved for summary judgment, arguing it was immune from liability for a dangerous condition of public property under the design immunity doctrine. With its moving papers the County provided the architectural design and engineering plans for the Olive View-UCLA Medical Center Emergency Room Replacement and Tuberculosis Unit Project (Olive View project), which included the approved plans for the curb that was the site of Dib's injury. According to licensed architect David Neagley, who provided an expert declaration in support of the County's motion, page C3.0.2 of the Precise Grading Plan for the Olive View project depicted a 12-inch curb design where Dib fell. The design plan, included with the declaration of John Lodge, an employee of the County's Department of Public Works, shows the design was approved by the Office of Statewide Health and Planning in April 2007. The County also provided evidence the plan was approved by the Board of Supervisors on July 15, 2008: In particular, Ernestina Rhind, an employee at the Records Management Office of the County Board of Supervisors, supplied a July 15, 2008 report by the County Chief Executive Officer "to adopt final plans and specifications" for the Olive View project. The report includes an official stamp from the County Board of Supervisors indicating the final design for the project was adopted and approved by the Board on July 15, 2008.
Based on his in-person observations of the accident site, Neagley determined the curb on which Dib fell actually measured 11 inches in height, one inch shorter than the approved design plan. Neagley described the varying curb heights for the Olive View project, which he explained ranged from 0 inches tall at the ambulance bay entry foyer to 11 inches tall at the site where Dib fell, as part of an overall design "to accommodate the varying differences between sidewalk and street elevations." "To the west of the subject curb, street elevations are raised up so that there is no curb at all at the Ambulance Entry Foyer, allowing patients on stretchers to be rolled from the ambulance into the Emergency Room across a flat and level transition from street to sidewalk. At the subject curb and continuing to the east, the street elevations are controlled primarily by water drainage requirements. The roughly rectangular paved area encompassing the Ambulance Entry Foyer and its adjacent vehicle maneuvering area has a single central drain. All paving in this area slopes toward this drain, creating a warped plane with an undulating surface around the perimeter. The curb location in question is right at the low point of this undulating surface, where a water flow line begins at the curb and flows toward the central drain." Neagley opined, based on his training and experience, the design of the subject curb was reasonable.
Neagley acknowledged in his declaration that Part E, section E600 of the City of Los Angeles Bureau of Engineering Street Design Manual (Engineering Manual) provides a "desirable minimum curb height is 5 inches in height, and the maximum height is 9 inches." However, Neagley stated, the Engineering Manual is a guide only; it does not impose absolute minimum and maximum height requirements for curbs, but allows that decision to be made on a case-by-case basis, depending on the variables of the project. "This is because the elevations of sidewalks and streets are controlled by different factors, including slopes for drainage, transitions and [Americans with Disabilities Act] requirements, as well as height requirements to accommodate drains and other penetrations through the curb face."
b. Dib's opposition papers
In her opposition papers Dib argued triable issues of material fact existed as to whether the Board of Supervisors had approved the 12-inch curb design at all. Dib observed page A1.2.4 of the approved plans provided with the County's motion identified "standard height concrete curb" at the location Dib was injured. Dib's expert, licensed civil engineer Brad Avrit, stated in his declaration that it is well understood in the industry that "standard size curb" means a curb six to eight inches tall. (Avrit attached several industry handbooks to support this statement.) Avrit also disagreed with Neagley's characterization of the Engineering Manual as a guide only. According to Avrit, the Manual "clearly sets a maximum limit to curb height at 9 inches."
Dib also proffered the County's response to her interrogatory asking the County to identify persons "employed or retained by County, including but not limited to the Los Angeles County Board of Supervisors and County counsel, who [were] aware, prior to approval, that construction/renovation of the subject location included a curb height of over nine inches." Specifically, objecting to the interrogatory as overbroad, burdensome and not likely to lead to the discovery of admissible evidence, the County replied, "Unknown at this time. Investigation and discovery are continuing." Dib argued the County's response showed it could not prove any supervisor was aware at the time the Board of Supervisors approved the Olive View project design that the curb height at the spot where Dib fell would exceed nine inches, let alone that it would violate the maximum height limitation identified in the Engineering Manual.
In addition, Dib supplied photographs of the site and her own declaration attesting that she fell off the curb while walking from the entrance of the emergency hospital to the mental health emergency clinic. Dib stated she had gone to the emergency room with other members of her family to accompany her partner to the psychiatric emergency clinic. She was told by an emergency room employee that the clinic was in the back of the hospital buildings and she should walk there directly, as parking was unavailable. Hospital employees told Dib to walk around the building and through the parking lot and she would see the sign for the emergency mental health clinic. Following this direction, Dib and her group walked through several parking lots. When she saw the sign for the mental health emergency clinic across an asphalt driveway, she stepped off the curb to walk toward the clinic, not realizing the curb was nearly twice as high, 11 inches, as an ordinary curb. She stumbled and injured herself. Although the curb was painted red, there was no warning sign posted and no reason for her to believe that the curb was an abnormal height. Dib's partner provided his own declaration supporting Dib's account of the accident.
c. The County's reply
In its reply papers the County asserted Dib's emphasis on page A1.2.4 of the design plan, which specified "standard curb sizes," was misplaced, as it was incomplete and misleading when viewed in isolation. The County observed page A1.2.4 of the design also included the following statement, placed inside a rectangular box to bring it to the reader's attention: "Note: Refer to Civil, Landscape, Structural, Electrical, and Plumbing Drawings for Additional Information." The additional information for the curb design, County asserted, was found in the "Precise Grading Plan," which identified varying curb heights, including a 12-inch curb at the location Dib fell.
The County also responded to Avrit's assertion that the Engineering Manual set mandatory minimum and maximum height for curbs. The County submitted the Manual's General Provisions section, which stated, "The Manual is a guide and is not a substitute for professional experience."
The Engineering Manual's General Provisions stated, " PURPOSE [¶] The Bureau of Engineering Manual is published as a reference and training guide for all Bureau employees. [¶] The Manual summarizes and outlines policy, practices and procedures that have been developed to increase the efficiency of [B]ureau operations. Its purpose is to inform and instruct employees about the current standards in Bureau practice. The standards have been adopted to encourage uniformity in the work of division and district offices of the Bureau of Engineering. The various sections of the Manual as dated in the upper right hand corner of each page supersede all prior dated Standard Practice Instructions, Office Standards, Special Orders and other directives relating to material covered."
" SCOPE [¶] . . . [¶] The Manual is a guide. It is not a substitute for professional experience. Sound judgment must be exercised in the application of Manual provisions to specific circumstances. For routine operations and procedures, the Manual instructions should be the standard. The contents do not preclude use of different methods when special or emergency conditions warrant and when proper authorization is obtained."
3. The Trial Court's Order Granting Summary Judgment
The court granted the County's summary judgment motion, finding the County had established a complete defense of design immunity and Dib had failed to raise a triable issue of material fact on any element. The court also rejected Dib's contention, based on section 815.6, that design immunity did not foreclose her premises liability action when, as here, the construction was contrary to established law. The court found the construction did not "violate" the Engineering Manual, which was a guide only and did not have the force of law.
The court alternatively ruled that, even if design immunity did not apply, the subject curb did not constitute a dangerous condition, emphasizing the absence of any prior accidents at the location and the fact the curb was painted red. Because we decide the appeal on design immunity grounds, we do not reach the propriety of the court's alternative reason for granting summary judgment. (See Samara v. Matar (2018) 5 Cal.5th 322, 333, 336 [ground reached by trial court and properly challenged on appeal but not decided by the appellate court does not have preclusive effect].)
DISCUSSION
1. Standard of Review
A motion for summary judgment is properly granted only when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c); see B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 178.)
A defendant may move for summary judgment on the ground there is an affirmative defense to the action. (Code of Civ. Proc., § 437c, subds. (o)(2), (p)(2); see also Hampton v. County of San Diego (2015) 62 Cal.4th 340, 343 (Hampton) [design immunity under Government Code section 830.6 is an affirmative defense].) Once the defendant establishes all elements of the affirmative defense, the burden shifts to the plaintiff to show there is one or more triable issues of material fact regarding the defense. (Shiver v. Laramee (2018) 24 Cal.App.5th 395, 400; Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484-1485; Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806-807.)
We review a grant of summary judgment de novo and, viewing the evidence in the light most favorable to the nonmoving party (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618), decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Hampton, supra, 62 Cal.4th at p. 347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.)
2. Governing Law
Under the Government Claims Act (§ 810 et seq.), a public entity is not liable for any injury except as otherwise provided by statute. (§ 815, subd. (a); see Hampton, supra, 62 Cal.4th at p. 347 [the intent of the Government Claims Act is to "'confine potential governmental liability, not expand it'"].) 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 preventative measures. [Citations.] 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.'" (Hampton, at pp. 347-348, citing § 830, subd. (a).)
If a dangerous condition is demonstrated, the public entity may still prevail against a claim by means of an affirmative defense of design immunity under section 830.6, which provides in part: "Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or employee could have approved the plan or design or the standards therefor."
"'The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design.'" (Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 946 (Gonzales); accord, Hampton, supra, 62 Cal.4th at p. 355; Rodriguez v. Department of Transportation (2018) 21 Cal.App.5th 947, 954 (Rodriguez).)
A public entity claiming design immunity under section 830.6 "'must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design [by the entity or individuals authorized to give such approval] prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.'" (Hampton, supra, 62 Cal.4th at p. 343, accord, Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66 (Cornette); Rodriguez, supra, 21 Cal.App.5th at p. 954.)
"'"The first two elements [of design immunity], causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed."'" (Rodriguez, supra, 21 Cal.App.5th at p. 954; accord, Gonzales, supra, 6 Cal.App.5th at p. 946.) "The third element, whether there is any substantial evidence of the reasonableness of the public entity's approval of the plan or design, is a question statutorily reserved for the court, not the jury." (Gonzales, at p. 946; accord, Cornette, supra, 26 Cal.4th at p. 72.) As to this element, "[t]he court is 'not concerned with whether the evidence of reasonableness is undisputed; the statute provides immunity when there is substantial evidence of reasonableness, even if contradicted.'" (Gonzales, at p. 946; accord, Rodriguez, at p. 955; Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940.)
3. The Court Did Not Err in Granting the County's Summary Judgment Motion on Design Immunity
a. Discretionary approval
The parties do not dispute the applicability of the first element of design immunity—a causal relationship between Dib's injury and the curb's design. Dib's assertions concerning a triable issue of material fact relate to the second element of design immunity, discretionary approval. According to Dib, page A1.2.4 of the County's design specifications for the Olive View project identified "standard height" concrete curbs, not the atypical 11-inch curb that caused her injury. This page of the plan alone, she argues, raises a triable issue of material fact as to whether the Board approved a standard-height curb design, which Avrit testified was six-to-eight inches tall, or a 12-inch-tall curb.
As the trial court observed when it granted the County's motion, however, Dib's argument requires the court to view page A1.2.4 of the design specifications in isolation and ignore the notation on the page that states more detailed plans may be found in more specific grading documents. That is, the plans must be read as a whole, with page C3.0.2 of the Precise Grading Plan plainly intended to supplement the more general page A1.2.4. And, as Neagley stated in his declaration, the Precise Grading Plan depicts a 12-inch curb design at the relevant location, a matter that Dib's expert, Avrit, did not dispute.
Dib nonetheless insists the design immunity defense must fail at this stage because the Board of Supervisor's July 15, 2008 adoption of the Olive View project final plans and guaranteed maximum construction price agreement did not specifically refer to the Precise Grading Plan. Accordingly, she contends, there is no evidence establishing the grading plan was adopted by the Board of Supervisors when it approved the final plans in July 2008. In fact, the Board's final approval did not refer to any specific pages in the project plans, neither page A1.2.4 nor page C3.0.2. Yet both of those pages were included as part of the County contract that was approved, and both contain the notation on the bottom right-hand corner that states, "7/03/08 LAC Contract Set." The Board of Supervisors approved the plans for the contract one week later, on July 15, 2008. Dib submitted no evidence of any other design plan that could have been approved on that date. On this record the trial court properly concluded the County had carried its burden to demonstrate a 12-inch high curb design at the location Dib fell had been approved by the appropriate authorities, and Dib failed to raise a triable issue of material fact on this question.
Dib's reliance on Cameron v. State of California (1972) 7 Cal.3d 318 (Cameron) to defeat summary judgment is misplaced. In Cameron the plaintiffs sued the State of California for premises liability alleging a "super-elevation" on a curve in the public road had caused the plaintiff motorist to lose control of the car and sustain severe personal injuries. At trial, the court granted the State's motion for nonsuit based on design immunity. The Supreme Court reversed, explaining the plans that had been approved by the State for the highway did not address elevation, let alone, super-elevation. Accordingly, the Court held, there was no evidence the super-elevation design had been approved at all. (Id. at p. 326; accord, Grenier v. City of Irwindale, supra, 57 Cal.App.4th at pp. 940-941 ["the injury-producing feature must have been a part of the plan approved by the government entity"].)
Unlike the plan in Cameron, which did not include the alleged dangerous feature, Neagley explicitly stated the approved plains identified a 12-inch-high curb at the location Dib fell. Cameron is inapposite.
Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451 (Castro), which Dib contends supports her position, is similarly unhelpful to her. In Castro several pedestrians sued the City of Thousand Oaks after they were hit by a car while crossing the street, alleging the crosswalk constituted a dangerous condition of public property. The City argued a number of improvements to the crosswalk had been approved by the proper authorities in 2010 and 2011 as part of a street rehabilitation project. However, the plans for the improvements did not include the warning beacon the City had later installed for increased safety. The trial court granted the City's motion for summary judgment based on the affirmative defense of design immunity, relying on the City engineer's authority under the municipal code "to purchase and install" traffic control devices. The court of appeal reversed, holding, if the City's position were adopted, "[a]ll that would be required would be a declaration by an engineer approving his or her own safety idea. To us, this seems a stretch which tears the legal fabric. There still must be an actual plan or design, i.e., something other than an oral 'after the fact' statement that: 'I had authority and I approved my own safety idea.'" (Id. at p. 1457; cf. Rodriguez, supra, 21 Cal.App.5th at p. 960 ["This is not a situation, as in Castro[,] . . . where the injury-producing feature was not part of the approved project plans but was added after plan approval. Instead, the injury-producing feature, the absence of rumble strips, was part of the plan"].)
Relying on Castro, Dib asserts the approved plan called for the curb to be "standard height" as reflected on page A1.2.4, and then, after approval but before construction, the design was changed to be a 12-inch tall curb. She further insists that "new design" was never formally approved. Dib cites no evidence to support this assertion of an after-approval design feature and, as discussed, the record is to the contrary.
Finally, citing the County's responses to her interrogatories, Dib alternatively contends she raised a triable issue of material fact as to whether any supervisor knew the approved curb design exceeded the maximum height identified in the Engineering Manual when the Board of Supervisors approved the plans for the Olive View project. If no one knew the plan contravened industry standards, she argues, then the Board of Supervisors could not have exercised an informed discretion when they approved the project design.
The Supreme Court rejected a similar argument in Hampton, supra, 62 Cal.4th 340. There, a motorist who had suffered serious injuries during a traffic collision at a public intersection sued (along with other members of his family) the County of San Diego, alleging the intersection presented a dangerous condition. The County of San Diego moved for summary judgment based on the affirmative defense of design immunity. In support of its motion the County of San Diego supplied its traffic studies and design plans for the intersection, described the design approval process in declarations submitted to the court and established the design was approved by the appropriate governing body. In opposition to the summary judgment motion, the plaintiff argued triable issues of material fact existed as to whether county personnel who had approved the design understood at the time of approval that the design did not comply with the County of San Diego's own visibility standards. (Id. at p. 345.)
Similar to Dib, the plaintiffs in Hampton argued discretionary approval inherently requires an informed choice. According to the plaintiffs, "'[O]nly an engineer who realizes a design does not conform to governing standards can truly make a discretionary decision to approve the design despite its nonconformity. By contrast, an engineer who approves a nonconforming design on the mistaken belief it conformed to governing standards has acted through inadvertence, not discretion.'" (Hampton, supra, 62 Cal.4th at pp. 348-349.) The Hampton Court rejected that argument, explaining that "such claims are [properly] considered under the reasonableness element of the statute." (Ibid.) The element of discretionary approval, in contrast, simply requires the design at issue to have been approved by the authorized individuals or government entity: "[T]he law's purpose is to avoid the dangers involved in permitting reexamination and second-guessing of governmental design decisions in the context of a trial: 'While it is proper to hold public entities liable for injuries caused by arbitrary abuses of discretionary authority in planning improvements, to 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.' [Citation.] We have recognized that this statement reflects legislative intent. [Citation.] Plaintiffs' interpretation of the statute, however, would implicate the adequacy of the deliberative process at the discretionary approval stage and would lead a jury into just the sort of second-guessing concerning the wisdom of the design that the statute was intended to avoid." (Id. at pp. 349-350.)
As in Hampton, supra, 62 Cal.4th at page 350, it does not matter for purposes of discretionary approval whether the Board of Supervisors understood a 12-inch curb design was an aberration that contradicted industry standards. The determination of the wisdom of the design is evaluated in connection with the third element of design immunity—the reasonableness of the design. (See Rodriguez, supra, 21 Cal.App.5th at p. 959 ["The wisdom of this [design] decision, and whether the project engineer should have considered whether to install rumble strips, is reviewed, not at the discretionary approval stage, but at the reasonableness stage," citing Hampton].)
b. Reasonableness of design
When deciding whether a design is reasonable to support design immunity, the tasks of the trial court and the reviewing court are one and the same—to determine whether there is any substantial evidence that a reasonable public official could have approved the challenged design. "'If the record contains the requisite substantial evidence, the immunity applies, even if the plaintiff has presented evidence that the design was defective.'" (Gonzales, supra, 6 Cal.App.5th at p. 953.) While the fact of approval by competent professionals can establish the reasonableness element, "'[t]ypically, "any substantial evidence" consists of an expert opinion as to the reasonableness of the design, or evidence of relevant design standards.'" (Id. at pp. 953-954.)
Relying on Avrit's declaration, Dib insists a design that permits a 12-inch-tall curb (or, as constructed, an 11-inch-tall curb) is inherently unreasonable, as it is contrary to the standards identified in the Engineering Manual, as well as those used in the industry. However, Neagley opined in his declaration that the varying heights of the curb, including the spot where Dib fell, were reasonable. He explained curb height could not be viewed in isolation but must be considered in light of the overall plan, which involved a zero-elevation curb near the ambulance bay to allow for unimpeded use of gurneys, and higher curbs and elevations nearby to permit water to flow to a single drain. Avrit did not address the drainage issue in his declaration. Nevertheless, even assuming Avrit's opinion the design posed a danger to unwary pedestrians was sufficient to create a conflict in the evidence as to the reasonableness of the design, that evidentiary dispute, in the design immunity context, does not preclude summary judgment. Neagley's declaration alone is substantial evidence of the reasonableness of the design. (Cornette, supra, 26 Cal.4th at p. 72 ["[s]ection 830.6 clearly makes the resolution of the third element of design immunity, the existence of substantial evidence supporting the reasonableness of the adoption of the plan or design, a matter for the court, not the jury"]; Gonzales, supra, 6 Cal.App.5th at p. 946 [evidentiary conflict does not preclude summary judgment; question is simply whether any substantial evidence supports reasonableness of design].)
Dib does not contend, and there is no evidence to suggest, design immunity has been lost due to a change in physical conditions. (See generally Cornette, supra, 26 Cal.4th at pp. 69-72.)
4. Section 815.6's Exception to Design Immunity Does Not Apply
Dib alternatively asserts that design immunity does not preclude a negligence claim based on the County's violation of a statute or regulation. She correctly observes that, by its terms, section 830.6's design immunity defense applies in lawsuits governed by "this chapter," including liability for a dangerous condition of public property. (§ 830.6; see Cal. Law Revision Com. com. foll. § 830.6 ["The immunity provided by section 830.6 is an immunity from liability under this chapter (Sections 830 to 840.6) only; hence, a public entity in some cases may be held liable under some enactment not contained in this chapter. For example, a public entity might be held liable under Section 815.6 for an injury resulting from its failure to exercise reasonable diligence to discharge a mandatory duty imposed by an enactment."].)
Section 815.6 provides, "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." Section 810.6 defines "enactment" as "a constitutional provision, statute, charter provision, ordinance or regulation."
Dib asserts that the Engineering Manual identifying a six-inch minimum and nine-inch maximum curb height is the functional equivalent of a regulation. While recognizing that the Manual also states that nothing therein prohibits "use of different methods when special or emergency conditions warrant and when proper authorization is obtained," Dib asserts the County provided no evidence that proper authorization for a deviation from the Manual was obtained. As a result, Dib contends, the construction of the 11-inch curb violated the Manual, making the City liable for injuries caused by that violation under section 815.6.
Assuming Dib adequately pleaded a cause of action under section 815.6, which is by no means clear (see Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1349-1350 ["[t]o assert liability under Government Code section 815.6 for breach of a mandatory duty, a plaintiff must specifically allege liability in his or her complaint and identify the applicable statute or regulation that imposes the alleged mandatory duty"]), neither the Engineering Manual nor any of its provisions amounts to a "regulation" as that term is specifically defined. (See § 811.6 ["'[r]egulation' means a rule, regulation, order or standard, having the force of law, adopted by an employee or agency of the United States pursuant to the federal Administrative Procedure Act . . . or as a regulation by an agency of the state pursuant to the Administrative Procedure Act"].) While Avrit declared the Manual identifies the industry standard, Dib provided no evidence to suggest the Manual was adopted by a state agency pursuant to the Administrative Procedure Act; and the Manual's general provisions, which explicitly describe the Manual as a reference and training guide only, do not support Dib's argument.
DISPOSITION
The judgment is affirmed. The County is to recover its costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.