Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORT
APPEAL from the Superior Court of Riverside County. No. RIC414978, Edward D. Webster, Judge.
The Traut Firm, Eric V. Traut; Kirby, Kirby, & Kirby and Aimee Kirby for Plaintiff and Appellant.
Bell Orrock & Watase, Inc., Stanley O. Orrock, Michael A. Fortino; Robert D. Herrick, City Attorney, Robert L. Hansen, Assistant City Attorney, Steve Hardman, Deputy City Attorney; Greines, Martin, Stein & Richland and Timothy T. Coates for Defendant and Respondent.
OPINION
King, J.
This case arises out of a collision between plaintiff Justin Fitch and Jesus Ramirez at an intersection in Moreno Valley. Fitch sued the City of Moreno Valley (City), alleging that the City is responsible for his injuries because the intersection constituted a dangerous condition of public property. The trial court granted the City’s motion for summary judgment, and Fitch appealed. We reverse.
I. SUMMARY OF FACTS AND PROCEDURAL HISTORY
A. The Pleadings
Fitch alleges the following relevant facts in his complaint: Kitching Street in Moreno Valley is a two-lane road, with one northbound lane and one southbound lane; it intersects with John F. Kennedy Drive (JFK); there are no left turn lanes on Kitching at the intersection with JFK; the intersection is controlled by an electronic signal phasing light that did not have a left turn arrow for drivers turning left from Kitching onto JFK; on January 13, 2004, Fitch was riding a motorcycle southbound on Kitching toward the intersection with JFK; Ramirez was driving northbound on Kitching toward the intersection; as Ramirez attempted to make a left-hand turn from Kitching onto eastbound JFK, he collided with Fitch; Fitch suffered injuries, including the severing of one leg.
The complaint further alleged that during the 10 years preceding the accident, at least 40 accidents occurred at the Kitching-JFK intersection; in at least 21 of these accidents, a vehicle making a left-hand turn from northbound or southbound Kitching collided with a vehicle traveling on Kitching in the opposite direction; there were 19 accidents with the same factual situation as Fitch’s accident.
Fitch alleged five causes of action, only one of which—“Governmental Liability-Personal Injuries”—is relevant here. Relative to that cause of action, Fitch alleged: the City created and had notice of a dangerous condition at the intersection, which created a substantial risk of injury when used with due care and in a reasonably foreseeable manner; the City failed to take reasonable precautions to prevent injury resulting from the dangerous condition or to warn the public of the dangerous condition; the dangerous condition was caused by the inadequate design, construction, inspection, and maintenance of the intersection; the City’s failure to modify the traffic signal and provide separate phasing for northbound and southbound movements was the primary factor causing the subject accident and prior incidents; had there been separate phasing, then the accident would not have occurred.
The second cause of action is for personal injuries and is asserted against Ramirez and his mother. The third, fourth, and fifth causes of action, for invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress, asserted against the City, were dismissed.
The City answered the complaint, asserting, among other defenses, that the claim was barred by the defense of design immunity provided by Government Code section 830.6.
All further statutory references are to the Government Code unless otherwise indicated.
B. The City’s Motion for Summary Judgment
The City moved for summary judgment or, in the alternative, summary adjudication. In its separate statement of undisputed facts, the City asserted the following facts relevant to the design immunity defense:
As Fitch pointed out below, the City’s moving papers failed to comply with court rules in several respects. The motion itself does not specify that the City is seeking summary adjudication of its design immunity defense, as required by former California Rules of Court, rule 342(b). Nor does the City’s separate statement specify which facts are relevant to the adjudication of the different claims and defenses. (Former Cal. Rules of Court, rule 342(d).) The citations to evidence in the City’s separate statement refer to the declarations generally without stating the specific page and line numbers the City is relying upon. (See ibid.) Fitch does not, however, assert on appeal that the judgment should be reversed because of these defects.
“8. The [City], in its discretion, reasonably approved the design plans for the intersection, [JFK] at Kitching Street in Moreno Valley, in 1994 as part of its routine review process.
“9. The design plans did not require left turn control signals/arrows for Kitching Street in the intersection in question, [JFK] at Kitching Street, in Moreno Valley.
“10. There is a causal relationship between the accident and the design of the intersection in question, [JFK] at Kitching Street in Moreno Valley.
“11. The design of the intersection in question, [JFK] at Kitching Street in Moreno Valley, was reasonable.”
Fitch did not dispute fact 10 (the causal relationship between the accident and the design of the intersection). In support of facts 8, 9, and 11, the City cited to a declaration by Edward Ruzak and “Exhibit B.” For further support of fact 9, the City relied upon a sheriff’s deputy’s traffic incident report.
This document was attached to a declaration by Bruce E. Disenhouse, counsel for the City, which states that the report is a true and correct copy of the incident report, prepared by Officer J.R. Horton of the Riverside County Sheriff’s Department, of the subject accident.
Ruzak is a civil engineer and consultant with respect to street, highway, and transportation engineering. In his declaration, Ruzak refers to a “Traffic Signal Plan, JFK Drive and Kitching Street” (the Traffic Signal Plan) as exhibit B. The Traffic Signal Plan, however, is not attached as an exhibit to Ruzak’s declaration or otherwise provided with the City’s moving papers. Instead, attached to Ruzak’s declaration in the place of exhibit B is a one-page sheet of paper that states: “oversized document [¶] available to all parties upon request.” (Capitalization omitted.)
According to Ruzak, the Traffic Signal Plan was designed and approved by a registered civil engineer, approved by the City’s traffic engineer, principal traffic engineer, and operations superintendent on April 20, 1993; and approved by Barry D. McClellan, a registered civil engineer and the City’s public works director on April 21, 1993. Based upon his review of the Traffic Signal Plan and other documents, regulatory standards for the design and operation of traffic signals, and his own investigation, Ruzak gave the following opinions: “the design and operation of this intersection including the traffic signal indications, phasing, yellow indications and all red clearance signal timing as it existed on January 13, 2004, and in 1994, after the signal was implemented was not in a dangerous condition and did not violate reasonable and recognized design and operational standards of the day”; “a reasonable public employee could have adopted the plan or design of the intersection in question”; and “the subject intersection meets and/or exceeds all of the traffic signal design and operational conditions for motor vehicle operation.”
C. Fitch’s Opposition to the City’s Motion
In his opposition papers, Fitch objected to, among other evidence, exhibit B to Ruzak’s declaration on the ground that it was not served with the City’s moving papers. Fitch did not object to Ruzak’s statements concerning the approval of the Traffic Signal Plan.
Fitch filed two separate statements. The first is a “response to defendant’s separate statement” (capitalization omitted), in which Fitch disputed fact 8 (the reasonable approval of the design plans for the intersection in 1994), fact 9 (that the design plans did not require left turn control signals or arrows), and fact 11 (that the design of the intersection was reasonable). The second is a “separate statement of undisputed material facts in support of plaintiff’s opposition to defendant’s motion for summary judgment/adjudication.” (Capitalization omitted.) In this document, Fitch set forth additional facts in 90 paragraphs under the heading: “If this court finds that the defendant has met their [sic] burden of establishing deisgn [sic] immunity exists for the subject intersection, a material issue in dispute exists as to whether said immunity has been lost.” (Capitalization omitted.)
In support of his opposition, Fitch relied upon the following evidence relevant here: a declaration of Harry J. Krueper, a civil engineer and traffic engineer; photographs of the Kitching-JFK intersection; traffic count reports for the intersection; traffic surveys and other documents evidencing vehicle speeds and traffic collisions at the intersection; and portions of the Traffic Manual MUTCD 2003 California Supplement published by the California Department of Transportation (of which he requested judicial notice). The MUTCD 2003 California Supplement excerpts include traffic signal warrants worksheets. These warrants worksheets set forth factual criteria used to justify traffic signal review and modification.
Fitch’s opposing papers include citations to additional evidence, including deposition transcripts and exhibits not included with the record on appeal. According to Fitch, he has limited the evidence on appeal to “only a few exhibits” in order to create “a more manageable record for review.”
Among the traffic surveys relied upon by Fitch is a document created by the City’s Department of Public Works. This document refers to a survey conducted by the City between January 2000 and December 2001 of a one-half mile stretch of Kitching from JFK to Cactus Avenue. The survey states that there were 15 collisions at intersections covered by the survey. Under the heading “RECOMMENDATIONS,” the document includes the phrase, “High collision rate.”
According to Krueper, studies done by the City in 2002 showed that the requirements for justifying a traffic signal warrant for the review and modification of the subject traffic signal had been met. Based upon his review of materials concerning this case and the accident history at the intersection, Krueper opined: “[T]he intersection of [JFK] and Kitching Street had been operating under an unsafe and dangerous condition since at least 1996, with an increasing frequency of accidents occurring until March 2004 without corrective measures being undertaken. An accident of the subject type was definitely foreseeable, and could have been prevented if adequate and proper traffic signal timing had been installed. The lack of adequate monitoring and evaluation of the number and type of accidents occurring at the subject intersection indicates neglect on the part of the [City], which should have been able to recognize the problem and undertake reasonable mitigation measures long before it did. Had the City undertaken those measures of mitigation, the subject accident could have been prevented.”
D. The City’s Reply
The City filed its reply papers on April 26, 2006. Among them is a request for judicial notice of the Traffic Signal Plan omitted from the City’s moving papers. A copy of the Traffic Signal Plan is attached to the request for judicial notice. The Traffic Signal Plan indicates that JFK has separate left turn lanes controlled by green arrow indicators. The plan does not indicate any left turn lanes or signal arrows for traffic on Kitching. The phasing diagram indicates that during one phase, the traffic signals allow for southbound and northbound vehicles to proceed simultaneously. After this phase, the signals allow for vehicles traveling eastbound on JFK to turn left onto northbound Kitching, and for vehicles traveling westbound on JFK to turn left onto southbound Kitching. In the final phase, the traffic signal allows for eastbound and westbound traffic to proceed straight through the intersection on JFK.
The illustrated phasing method set forth in the Traffic Manual that most closely resembles the phasing diagram in the Traffic Signal Plan is described as a “three phase” method. Ruzak describes the intersection as a “five phase signal operation.”
In the City’s reply separate statement, the City responded to the 90 paragraphs of facts set forth by Fitch concerning the loss of design immunity.
E. The Hearing
Argument on the City’s motion was held over at least two days. On June 2, 2006, the court addressed Fitch’s objection based upon the omission of the Traffic Signal Plan in the City’s moving papers. The court pointed out that Fitch “hasn’t had a chance to address” the late request for judicial notice and sought Fitch’s counsel’s “suggestion in that regard.” Fitch’s counsel said she was “torn,” because if the court was going to deny the motion based upon the objection, she explained, “that would definitely weigh heavily on me about what I want to do with that.” Ultimately, she asserted that the defective moving papers could not be supplemented by the request for judicial notice; instead, she argued that the motion needed to be withdrawn and refiled.
The hearing also encompassed a motion for summary judgment brought by Fitch, which the court denied. Our record includes a reporter’s transcript of hearings that took place on June 2 and June 15, 2006. During the June 2 hearing, the City’s counsel mentioned being in court “on the 16th when we originally started this hearing.” The trial court’s register of actions indicates an even earlier hearing on the motions on May 5, 2006.
In addition, the court drew counsels’ attention to the issue that Ruzak may not be competent to testify as to whether the Traffic Signal Plan was approved in the manner required for design immunity. Before adjourning the proceeding on June 2, 2006, the court suggested that the foundational issues with Ruzak’s declaration be “clear[ed] up.”
On June 12, 2006, three days before the second day of argument on the City’s motion, the City filed and served by mail a declaration of S. Craig Neustaedter, the City’s traffic engineer, to address the foundational issues concerning Ruzak’s declaration. Neustaedter states that he has reviewed Ruzak’s declaration, and that Ruzak’s statement that the Traffic Signal Plan was approved by Barry D. McClellan, a registered civil engineer, is correct.
On June 15, 2006, the second day of the hearing, the court again addressed the issue regarding the late submission of the Traffic Signal Plan. The court told Fitch’s counsel: “If you wanted time to submit additional work and respond because of this surprise in the reply, I would grant you that.” Taking judicial notice of the Traffic Signal Plan with the reply papers, the court explained, should be permissible “so long as you give the other party a chance to respond.” Fitch’s counsel did not accept the court’s offer for additional time; rather, she reiterated her position that the only way to cure the error was for the City to withdraw its motion and file it again.
The court overruled all objections to evidence, and granted the City’s request for judicial notice of the Traffic Signal Plan and Fitch’s request for judicial notice of the Traffic Manual. The court granted the City’s motion for summary judgment. The court acknowledged the traffic survey’s description of the area as having a “[h]igh collision rate,” but ultimately gave no weight to it. In according little to no weight to Krueper’s declaration, the court indicated, “the only evidence [it had] that there’s a changed condition . . . causing the design immunity to be lost would be . . . that arguable 3,000 increase in traffic.” This, the court concluded, was not enough to support the loss of design immunity.
It does not appear from the record that the court reviewed or relied upon the Neustaedter declaration. Indeed, it was not mentioned by the court or counsel for either party.
II. Standard of Review
We review an order granting summary judgment de novo, considering all the evidence submitted in support of and in opposition to the motion, except evidence to which an objection has been made and sustained by the court, and all uncontradicted inferences reasonably deducible from the evidence. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) Because we review only the court’s ruling and not its rationale, we need not express any view as to the correctness of the court’s reasoning. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196; Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867, 873.)
Summary judgment is proper where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The City, as the moving party, carries the ultimate burden of persuasion; that is, it must “persuade the court that there is no material fact for a reasonable trier of fact to find.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. 11 (Aguilar).)
The burden of persuasion is distinguished from the burden of producing evidence on a summary judgment motion; the parties’ respective burdens of production “depends on which [party] would bear what burden of proof at trial.” (Aguilar, supra, 25 Cal.4th at p. 851.) Thus, understanding the burdens of production in this case requires us to first consider the parties’ burdens of proof at trial on the disputed issues.
In his complaint, Fitch alleges that the City is liable for his injuries because the Kitching-JFK intersection constituted a dangerous condition of the City’s property. In particular, the dangerous condition consisted of the absence of “separate phasing for the northbound and southbound movements.” Under section 835, “a public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures.” (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 68 (Cornette).) A plaintiff asserting such a claim has the burden of proof at trial as to the elements of the claim. (Mathews v. City of Cerritos (1002) 2 Cal.App.4th 1380, 1384.)
Section 835 provides: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”
Under section 830.6, a public entity may avoid liability for a dangerous condition of property if it can establish that the injury was caused by an approved plan or design. The elements of this defense are: “(1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.” (Cornette, supra, 26 Cal.4th at p. 69.) The defendant government entity has the burden at trial of establishing these elements. (Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, 60 (Weinstein).)
Section 830.6 provides, in part: “Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.”
Prior to the California Supreme Court’s decision in Baldwin v. State of California (1972) 6 Cal.3d 424 (Baldwin), “design immunity, once acquired, persisted regardless of any subsequent change of conditions.” (Cornette, supra, 26 Cal.4th at pp. 69-70.) In Baldwin, the court held that when the government entity “has notice that the plan or design, under changed physical conditions, has produced a dangerous condition of public property, it must act reasonably to correct or alleviate the hazard.” (Baldwin, supra, at p. 434, fn. omitted; see Cornette, supra, at p. 70.)
The Legislature responded to Baldwin by amending section 830.6, for the purpose of allowing government “‘entities a reasonable time to finance and take remedial action or to provide adequate warning of the dangerous condition.’” (Cornette, supra, 26 Cal.4th at p. 72, quoting Assemblyman John T. Knox, letter to Governor Edmund G. Brown, Jr., re Assem. Bill No. 893, Aug. 30, 1979, pp.1-2.) “Therefore, under Baldwin and section 830.6 as amended, to demonstrate loss of design immunity a plaintiff must establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.” (Cornette, supra, at p. 72.)
The amendment added the following language to section 830.6: “‘Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee. In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard. However, where a person fails to heed such warning or occupies public property despite such warning, such failure or occupation shall not in itself constitute an assumption of the risk of the danger indicated by the warning.’” (Cornette, supra, 26 Cal.4th at p. 71, quoting Stats. 1979, ch. 481, § 1, pp. 1638-1639.)
The loss of design immunity is in the nature of a defense to the defense of design immunity. Thus, the plaintiff bears the burden of proving each of the elements of the loss of design immunity. (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806 (Mirzada); Weinstein, supra, 139 Cal.App.4th at p. 60.)
In light of the foregoing, the City in this case, as the party moving for summary judgment, has the initial burden of production. (See Aguilar, supra, 25 Cal.4th at pp. 850-851.) As a defendant, the City must satisfy this burden by producing sufficient evidence to make a prima facie showing that either: (1) one or more elements of Fitch’s cause of action cannot be established, or (2) there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at pp. 850-851.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, at p. 851.)
The City’s motion is based on the affirmative defense of design immunity. It has, therefore, the initial burden to produce evidence sufficient to support each element of that defense. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467-468.) This burden can be met based upon all of the admissible evidence submitted in support of, or in opposition to, the motion for summary judgment. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 750-751.) If the City does not satisfy this burden, the motion must be denied. (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534.)
As noted above, the City did not specifically state the specific causes of action or affirmative defenses it sought to be adjudicated. However, in the City’s memorandum of points and authorities, the only argument asserted as to Fitch’s cause of action for personal injuries against the City is that the claim must fail because the City is protected by design immunity.
If the City meets it initial burden of production, Fitch then bears the burden of producing evidence to show the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) Because the City’s motion is based upon the defense of design immunity, Fitch may satisfy his burden by producing evidence that creates a triable issue of fact as to: (1) any element of the affirmative defense of design immunity, or (2) each element of the loss of design immunity. (Mirzada, supra, 111 Cal.App.4th at pp. 806-807;Weinstein, supra, 139 Cal.App.4th at p. 57.)
III. ANALYSIS
A. The City’s Failure to Address the Loss of Design Immunity in Its Opening Papers
Initially, Fitch contends that the City was required to set forth facts and evidence in its opening separate statement establishing not only the City’s design immunity, but, additionally, that it has not lost such immunity. The allegations in the complaint, Fitch argues, put the loss of design immunity in issue, and “put the onus on defendant to refute the allegations of loss of design immunity.” We disagree.
Fitch relies on cases that hold that when a plaintiff anticipates a defense and alleges facts in the complaint that would defeat the defense, a defendant moving for summary judgment based on the anticipated defense must make an initial showing refuting such allegations. (See, e.g., Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1739-1740; Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 859.) This principle flows from the rule that the issues to be considered on a motion for summary judgment are defined by the pleadings. (See Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 123.)
Fitch does not expressly allege that the City (if it ever had design immunity) lost its design immunity due to changed conditions. Fitch asserts, however, that he put the loss of design immunity in issue in the complaint “by 1) showing the changed conditions via the high rate of similar accidents within the [10-]year period before the subject accident, 2) by indicating that [the] City had actual notice of the dangerous condition, and 3) by explaining how the City could have modified the traffic signal to provide separate phasing.” He relies upon the allegations in paragraphs 8, 12, 15, and 16 of the complaint. In these paragraphs, Fitch alleges, in essence, the dangerousness of the intersection, notice on the part of the City, and the City’s ability to protect against the injury with separate signal phasing. Nowhere does plaintiff allude to a “change in physical conditions” that occurred from the time of the original signal design to the date of the accident. The notice alleged in the complaint is merely notice that the intersection was dangerous, not that the intersection was made dangerous because of a change in physical conditions. Finally, stating that the accident could have been avoided by separate phasing of the signals is insufficient by itself to allege the third element of the loss of design immunity.
Because Fitch did not adequately allege facts supporting the loss of design immunity, the City was not required to refute such facts in its opening papers. (See Westlye v. Look Sports, Inc., supra, 17 Cal.App.4th at p. 1740.) Therefore, if Fitch desired to defeat summary judgment based upon the loss of design immunity, it was incumbent on him to raise the issue, as he did, in his opposition to the motion. (See, e.g., Mirzada, supra, 111 Cal.App.4th at p. 807.)
B. Design Immunity
We now turn to the merits. Fitch’s complaint alleges that the City is liable for his injuries because the Kitching-JFK intersection constituted a dangerous condition of the City’s property. Under section 835, “a public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures.” (Cornette, supra, 26 Cal.4th at p. 68, fn. omitted.)
In its motion for summary judgment, the City did not attempt to show that Fitch could not establish the requirements of a dangerous condition claim. Instead, the City asserted that it was entitled to judgment as a matter of law because the evidence established each element of the affirmative defense of design immunity. The elements of this defense are: “(1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.” (Cornette, supra, 26 Cal.4th at p. 69.)
Fitch does not dispute the causal relationship element of the design immunity defense.
The second requirement for design immunity—discretionary approval of the design or plan prior to construction—“simply means approval in advance of construction by the legislative body or officer exercising discretionary authority.” (Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 526; accord, Alvarez v. State of California (1999) 79 Cal.App.4th 720, 734 (Alvarez), disapproved on another point in Cornette, supra, 26 Cal.4th at pp. 73-74.) When there is conflicting evidence on this issue, the question must be decided by a jury. (Hernandez v. Department of Transportation (2003) 114 Cal.App.4th 376, 387-388.)
Relative to this second element, the City submitted the Traffic Signal Plan and Ruzak’s declaration. We first address Fitch’s argument that the court erred in taking judicial notice of the Traffic Signal Plan. As noted above, the document was not included with the City’s moving papers, and Fitch objected to this omission. The City eventually supplied the Traffic Signal Plan to Fitch and submitted it to the court along with its request for judicial notice of the document. Fitch did not file a written opposition to the request, but did argue at the hearing that the court could not consider the Traffic Signal Plan on the ground that it was submitted too late.
Significantly, Fitch opposed the request for judicial notice solely on the ground that it was submitted too late; he did not oppose the request on the ground that the document was not a judicially noticeable document per se. Although he asserts on appeal that the court was not required to take judicial notice of the Traffic Signal Plan under Evidence Code section 451, he did not assert this ground in the trial court. It is therefore forfeited on appeal.
A trial court hearing a motion for summary judgment has discretion, circumscribed by due process, to consider additional evidence submitted with a party’s reply papers. (Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1099 (Weiss).) As stated in Weiss, “the court should consider all admissible evidence of which the opposing party has had notice and the opportunity to respond.” (Id. at p. 1098; see also San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 [due process requires that the party be given adequate notice of what facts it must rebut in order to prevail].)
In Weiss, the defendant and moving party, Chevron, filed a declaration in support of its summary judgment motion with its reply papers. The trial court relied upon the declaration in granting Chevron’s motion. In affirming the judgment, the Court of Appeal rejected the plaintiff’s argument that the late-filed document should not have been considered. Chevron, the Court of Appeal stated, “expressed its willingness to continue the hearing on the summary judgment motion to enable plaintiff to review the declaration, depose the declarant, and present further substantive opposition. Due to unrelated circumstances, the hearing was actually postponed 51 days from its original date . . . . During that time, Chevron provided numerous documents through discovery that should have revealed some evidence supporting plaintiff’s claim, if any existed. Nevertheless, plaintiff affirmatively rejected the opportunity to counter Chevron legally or factually on the merits and chose instead to remain fast to a technical procedural objection.” (Weiss, supra, 204 Cal.App.3d at p. 1099.) “This attitude,” the court stated, “does not comport with the purpose and function of summary judgment.” (Ibid.)
Like the trial court in Weiss, the trial court in this case made clear that it would grant Fitch additional time to respond to the submission of the Traffic Signal Plan if he wanted it. Fitch’s counsel rejected the opportunity to respond to the new evidence, insisting that the motion must be withdrawn and refiled. As in Weiss, the argument on appeal is an attempt to “elevate form over substance” and “is contrary to the intent that summary judgment should eliminate those causes of action about which the parties have no factual dispute.” (Weiss, supra, 204 Cal.App.3d at p. 1099.) Having been provided with notice of the submission of the Traffic Signal Plan and given the opportunity to respond, Fitch cannot complain that he was denied due process. Under these circumstances, the trial court did not abuse its discretion in considering the Traffic Signal Plan.
Taking judicial notice of the Traffic Signal Plan does not necessarily allow the court to accept the truth of factual matters that might be deduced from the document. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064, overruled on another point in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) That is, judicial notice of the Traffic Signal Plan establishes the truth of its existence; but it does not, without more, establish the fact that the plan was approved by a City official exercising discretionary authority or the truth of the signal phasing depicted therein.
However, the elemental fact of discretionary approval can be pieced together from portions of Ruzak’s declaration to which Fitch did not object, Traffic Manual excerpts attached to Ruzak’s declaration (and included with Fitch’s request for judicial notice), and the evidentiary presumption that official signatures are genuine and authorized. Ruzak testified in his declaration that the Traffic Signal Plan was approved by the City, its City traffic engineer, principal traffic engineer, operations superintendent, and the public works director. Although the trial court questioned whether Ruzak was competent to testify as to such approval, Fitch did not object to this aspect of Ruzak’s declaration. The Traffic Manual excerpts indicate that the selection of traffic signal plans is a discretionary decision that reflects variations in traffic demand, as well as the physical design of the intersection, proximity to nearby intersections, the relationship between the subject intersection and other intersections, and the complexity and expense of the signal operation. The Traffic Signal Plan itself indicates that it was approved by the “City Traffic Engineer,” the “Principal Engineer,” and the “Operations Supt.” on April 20 and April 21, 1993. The signature of Barry D. McClellan, as the City’s public works director, appears on the Traffic Signal Plan under the words “approved by” and the date, April 21, 1993. Under Evidence Code section 1453, “[a] signature is presumed to be genuine and authorized if it purports to be the signature, affixed in his official capacity, of: [¶] . . . [¶] . . . [a] public employee of any public entity in the United States.” McClellan’s signature on the Traffic Signal Plan meets the requirements of this presumption. Such evidence, taken together, is sufficient to satisfy the City’s burden of production on the issue of whether the Traffic Signal Plan was approved by a City official exercising discretionary authority. (See Alvarez, supra, 79 Cal.App.4th at pp. 728-729.) Fitch presented no evidence that the requisite approval was not obtained.
Fitch states in his brief that he objected to Ruzak’s declaration on the ground that it failed to show his competency or personal knowledge about the City’s approval process. No such objection is included in Fitch’s written objections to the declaration. Although the court expressed its concern about Ruzak’s incompetence as to the City’s approval process, Fitch did not assert the objection himself.
On appeal, the City also relies on the declaration of Neustaedter. We do not consider the Neustaedter declaration for any purpose for two reasons. First, the declaration is not referenced as evidence in support of any fact in the City’s separate statement of undisputed facts, as required by Code of Civil Procedure section 437c, subdivision (b)(1) (each material fact in the separate statement “shall be followed by a reference to the supporting evidence”). (See United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [if it is not set forth in the separate statement, it does not exist].) Second, the declaration was served by mail on Fitch only three days before the last day of oral argument on the motion. Under these circumstances, relying on this declaration would offend Fitch’s right to due process.
The discretionary approval of the plan must occur prior to construction of the injury-producing improvements. Although the City did not submit direct evidence of the date that the traffic signals were placed in operation at the intersection, we can reasonably infer from the Traffic Signal Plan and the existence of the traffic signals at the intersection that the plan preceded the placement of the signals. As the trial court stated, “common sense tells me, that the plan would have to be approved before the roadway was built.” The evidence is thus sufficient to satisfy the City’s initial burden of production on this issue. Moreover, Fitch does not assert on appeal that summary judgment should be reversed on this point. Any deficiency in the moving papers on this point is thus waived by Fitch. (See Wachovia Bank v. Lifetime Industries, Inc. (2006) 145 Cal.App.4th 1039, 1052.)
The third element of design immunity—substantial evidence supporting the reasonableness of the plan or design—is a legal issue for the court to decide. (Cornette, supra, 26 Cal.4th at p. 72; Weinstein, supra, 139 Cal.App.4th at p. 58.) “The issue is not whether the trial court or jury could find the design unreasonable based on conflicting evidence, but whether there is any reasonable basis on which a reasonable public official could initially have approved the design. . . . [¶] Thus, as long as there was any substantial basis on which a government official could have decided the design was reasonable, it is irrelevant that a contrary opinion might have been offered.” (Compton v. City of Santee (1993) 12 Cal.App.4th 591, 596-597, citing Baldwin, supra, 6 Cal.3d at pp. 429-431.) This is consistent with the rationale underlying design immunity, which “is to prevent a jury from reweighing the same factors considered by the governmental entity which approved the design.” (Alvarez, supra, 79 Cal.App.4th at p. 728.)
On this issue, the City again relies on Ruzak’s declaration and the Traffic Signal Plan. Ruzak states that the standards for the design and operation of traffic signals are set forth in the Traffic Manual. Excerpts of the Traffic Manual are attached to the declaration. The phasing set forth in the Traffic Signal Plan is consistent with a left turn phasing method provided in the Traffic Manual. According to Ruzak, the traffic signal phasing at the Kitching-JFK intersection and other aspects of the traffic signal design are in compliance with guidelines set forth in the Traffic Manual and meet or exceed all traffic design and operational conditions for motor vehicles. The design and operation of the traffic signals, Ruzak concludes, did not violate reasonable and recognized design and operational standards of the day, and a reasonable public employee could have adopted the subject plan. The evidence submitted by the City, we find, is sufficient to satisfy the City’s burden of production relative to the third element of design immunity.
Because the City satisfied its burden of production as to design immunity, the burden shifts to Fitch to either show a triable issue of fact as to at least one element of design immunity or each of the elements of the loss of design immunity. (Mirzada, supra, 111 Cal.App.4th at p. 807; Weinstein, supra, 139 Cal.App.4th at p. 60.)
C. Loss of Design Immunity
Although Fitch’s response to the City’s separate statement states that he disputes facts supporting the elements of design immunity, he does not pursue these arguments on appeal. Instead, he argues that the evidence establishes triable issues of fact as to the loss of design immunity. As set forth above, these elements are: “(1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.” (Cornette, supra, 26 Cal.4th at p. 72.)
Fitch devotes a substantial portion of his brief to the argument that the court improperly weighed evidence and considered credibility. However, because we review the record independently, we are unconcerned with the trial court’s review of the evidence.
Relative to the first element, Fitch relies upon Krueper’s declaration and evidence that traffic volumes, vehicle speeds, and accidents at the intersection have increased in the seven years preceding his accident. Increases in traffic volume, speeds, and accidents may constitute a change in physical conditions if, as a result, the design is no longer in conformity with applicable standards, or the changes “would have rendered it unreasonable for a public entity to approve the design.” (Weinstein, supra, 139 Cal.App.4th at pp. 60-61; see also Wyckoff v. State of California (2001) 90 Cal.App.4th 45, 60; Mirzada, supra, 111 Cal.App.4th at p. 808; Higgins v. State of California (1997) 54 Cal.App.4th 177, 188, disapproved on another point in Cornette, supra, 26 Cal.4th at pp. 73-74; Baldwin, supra, 6 Cal.3d at pp. 428-429, 431; see also § 830.6.)
Fitch’s evidence shows that between 1996 and 2002: (1) the number of vehicles per day traveling on Kitching increased from approximately 5,000 to approximately 6,000; (2) average vehicle speeds increased from 45 miles per hour to 48 miles per hour; and (3) the speeds of vehicles at the 85th percentile increased from 49 miles per hour to 54 miles per hour. The collision reports indicate an increase in the number of accidents involving vehicles turning left from Kitching onto JFK increased from three (between July 1995 and June 1997) to seven (between January 2000 and December 2001). Krueper’s declaration references 32 accidents between June 1997 and December 2003.
Fitch’s expert, Krueper, refers to section 9-03.6 of the Traffic Manual (of which the court took judicial notice), which provides: “Opposing operation should be used where the left turn volume per lane is very high in either direction and is about equal to or greater than the companion through movement. This method is especially useful when one of the through lanes must be used as an optional turning lane or where a separate left turn lane cannot be provided.” (Although it is not clear from our record, the phrase “opposing operation” in the Traffic Manual appears to be synonymous with “separate phasing”—the phrase used by Fitch to describe signal operation that prevents traffic in one direction from proceeding at the same time as traffic in the other direction.) Based upon his review of traffic volume surveys, Krueper testified that prior to the accident, the “intersection had a very high left-turn volume per lane on Kitching in both directions that was equal to or greater than the companion through movement.” Additionally, Krueper states that the Traffic Manual also sets forth requirements, or “warrants,” for review and modification of traffic signals, and that these warrants were met in this case. Finally, Krueper testified that the Kitching-JFK intersection “had been operating under an unsafe and dangerous condition since at least 1996, with an increasing frequency of accidents occurring until March 2004 without corrective measures being undertaken.” And, in a July 16, 2002, Engineering and Traffic Survey Summary, after noting 15 intersection accidents, under the recommendation portion of the survey, “High collision rate,” is noted.
In reviewing the City’s summary judgment motion, we must construe Fitch’s evidentiary submissions liberally and in a light most favorable to him. (See Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) So construed, Krueper’s statements concerning the left turn volume on Kitching and the dangerousness of the intersection since 1996, in conjunction with the Traffic Manual provision for opposing signal operation, the signal warrants, and the evidence of increasing traffic volume, speeds, and left turn accidents, provides sufficient evidence to create a triable issue as to whether the signal design had become unreasonable in light of changed conditions.
The City argues that the Traffic Manual and traffic signal warrants merely provide guidance for informing engineers, not mandatory standards. The traffic signal warrants worksheet submitted by Fitch, for example, states: “The satisfaction of a warrant is not necessarily justification for a signal. Delay, congestion, confusion or other evidence of the need for right-of-way assignment must be shown.” And section 9-03.6 of the Traffic Manual sets forth a somewhat vague standard for determining when opposing phasing “should be used,” not when it must be used. The City relies on Alvarez, supra, 79 Cal.App.4th 720 for the proposition that the satisfaction of conditions for a warrant for the modification of an existing improvement does not in and of itself evidence a dangerous condition. While we fully agree with Alvarez, it is distinguishable from our facts.
Alvarez involved a cross-median accident on State Route 99. At the time of its initial design, warrants for the construction of a median barrier depended primarily on the width of the median. (Alvarez, supra, 79 Cal.App.4th at pp. 724-725.) Depending on the width, they could be triggered by either a traffic volume/width warrant or by an accident warrant. “Traffic volume/width warrants index traffic volume to median width. Accident warrants index the frequency and severity of traffic accidents at a given locale with a state average.” (Id. at p. 725.) When the relevant portion of the highway was designed and constructed in the 1960’s, warrants did not call for the installation of a barrier. (Id. at p. 734.) By 1995, traffic volumes had increased such that the traffic volume/width warrant was satisfied. (Id. at p. 735.) Significantly, the accident warrant criteria had not been met, a fact conceded by the plaintiff. (Ibid.) The court noted that there were five accidents in the five and one-half years before the subject accident—an accident rate that was “35 percent less than the expected rate.” (Id. at pp. 727, 735.)
The plaintiff in Alvarez argued that the doubling of traffic volumes, which triggered the traffic volume/width warrant, constitute changed physical conditions that defeat design immunity. (Alvarez, supra, 79 Cal.App.4th at p. 735.) The court rejected the argument, stating: “Alvarez’s argument is flawed. First, while increased traffic volume may constitute changed physical conditions [citations], design immunity is not lost simply because the design is operating under changed physical conditions. There must be evidence that the design, under changed physical conditions, has produced a dangerous condition of which the State is aware. [Citations.]” (Id. at p. 737, italics added.) Second, the court continued, the mere satisfaction of the traffic volume/width warrant criteria, when there was an “unremarkable accident history at the site,” did not necessarily constitute a dangerous condition. (Id. at pp. 737-738.) Thus, in Alvarez, while the traffic volume/width warrant criteria had been met, there was no showing that as a result of the changed physical condition (i.e., the increase in traffic volume), the roadway had become a dangerous condition. In essence, there was no nexus between the changed physical condition of the property, and its dangerousness; the increase in traffic flow did not affect the safe operation of the underlying facility.
Here, unlike in Alvarez, there is sufficient evidence to create a triable issue of fact that the changed physical conditions—increase in traffic volume, increase in speed, and increase in accident rate—led to a dangerous intersection. As evidenced here, the traffic signal became operational in January or February 1994. The record contains no clear record of traffic volumes for the year 1994. However, there is some evidence that indicates that no intersection collisions occurred in 1994. Traffic volumes taken in November 1996 demonstrate approximately 5,000 vehicles per day in the area of the intersection of Kitching and JFK. The average speed for vehicles was 44 miles per hour, with the 85th percentile being 48 miles per hour. During this time frame, the records show two substantially similar collisions in 1995 and one in 1997. From January 2000 through December 2001, seven substantially similar accidents occurred at the intersection—more than twice as many as the number of substantially similar accidents during the time span from July 1995 to June 1997. As of July 2002, the City is noting that the intersection has a “[h]igh collision rate.” By October 2002, traffic volume had increased by 20 percent to slightly over 6,000 vehicles per day. And in the 11-1/2 months between April 4, 2002, and March 20, 2003, five similar accidents occurred at the intersection. According to plaintiff’s expert, by 2002 the “crash warrant” (which is based in part upon the accident history) was met.
The City argues that City engineer Neustaedter’s deposition testimony demonstrates that the collision rate was not outside of the normal range within the City of Moreno Valley. The portion of the deposition transcript that is before us does not support the City’s contention. Neustaedter did not testify one way or the other as to whether the collision rate at the subject intersection was greater than the collision rates at other intersections in the City of Moreno Valley. He merely testified that the average was 1.4 accidents per one million vehicles, and that he would be concerned if the accident rate moved into the range of 2.3 accidents per one million vehicles. The City argues that the trial judge found that the subject intersection’s ratio was 1.4 accidents per one million vehicles, and was therefore consistent with the average collision ratio throughout the City. Again, we disagree with the City’s characterization of the record. The trial court commented, “I think the traffic person from the [C]ity, Mr. Nuestaedter, testified that the key figure from his point of view is something like 2.5 accidents per million. Is that right. As opposed to—and this was 1.4?” The City’s counsel then responded: “It’s my understanding they consider a high rate of 2.4 to 2.5 collisions per million vehicles.” While it is clear that the trial court was under the impression that at the time of the present accident, the ratio was 1.4 accidents to one million vehicles, the statement was actually a question. Additionally, even accepting Neustaedter’s ratios, there is evidence in the record that the accident ratio was well above 1.4 per million during the time period of January 2000 through December 2001, and significantly above that ratio for the time period of April 2002 to March 2003.
In support of the second element of the loss of design immunity—that the City had actual or constructive notice of the dangerous condition created by the increase in volume, speed, and accidents—Fitch points to the City’s traffic survey referring to the subject area as having a “[h]igh collision rate.” According to deposition testimony of Neustaedter, a “high collision rate” for a location is one that exceeds the first standard deviation from the average accident rate in Moreno Valley. Such a rate, he testified, would “point to a high collision location that would require some attention.” From this evidence, jurors could reasonably conclude that the City was aware that Kitching, near its intersection with JFK, was a “high collision rate” location that “require[d] some attention.” If the intersection had been given the attention that arguably should have followed this survey, the City may have determined that the increase in traffic volume and accidents at the intersection required modifying the traffic signal to provide for separate phasing of lights for Kitching. Fitch has thus submitted sufficient evidence from which jurors could reasonably find that a change in physical conditions had occurred and that the City had actual or constructive notice of the change.
The City argues that Fitch takes the “[h]igh collision rate” language out of context, and that the statement does not refer to an aberrational rate of accidents. The argument, however, is unsupported by evidence.
The third element of the loss of design immunity can be shown by evidence that the City had a reasonable time to obtain funds to carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan. (Cornette, supra, 26 Cal.4th at p. 72.) In support of this element, Fitch offered evidence that the “cost of splitting the phasing of the lights was $5,000.” The inference to be drawn from this is that the cost of making the intersection less dangerous is insignificant. The trial court found this fact “was correct,” and added: “It was only $5,000. It was not a lot of money.” The City does not dispute this fact on appeal.
We thus conclude that Fitch has adequately set forth facts sufficient to create a triable issue of fact as to each of the elements necessary to establish the loss of design immunity. Therefore, summary judgment is inappropriate.
IV. DISPOSITION
The judgment is reversed. Fitch is awarded his costs on appeal.
We concur: McKinster, Acting P.J., Miller, J.