Opinion
G063084
11-21-2024
JURAJ KABAT, et al., Plaintiffs and Appellants, v. CITY OF IRVINE, Defendant and Respondent.
Dordick Law Corporation, Gary A. Dordick and John M. Upton for Plaintiffs and Appellants. McCune & Harber, Dana John McCune, Celia Cho, and Jennifer G. Hu, for Defendant and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-202101214091 Nathan R. Scott, Judge. Affirmed.
Dordick Law Corporation, Gary A. Dordick and John M. Upton for Plaintiffs and Appellants.
McCune & Harber, Dana John McCune, Celia Cho, and Jennifer G. Hu, for Defendant and Respondent.
OPINION
DELANEY, J.
A bicyclist was struck by a vehicle as she was crossing a marked, non-signalized crosswalk on an onramp from Jeffrey Road in the City of Irvine leading to the I-405 freeway northbound. The bicyclist's parents, Juraj Kabat and Silvia Kabatova (collectively, Plaintiffs), sued the City of Irvine (the City), the Department of Transportation (Caltrans), and others for her resulting death. The sole cause of action against the public entities was liability for a dangerous condition of public property. (Gov. Code, § 835.)Plaintiffs claimed that the public entities created a dangerous condition by not signalizing the crosswalk, failing to provide adequate signage, and/or setting the speed limit too high for pedestrians and bicyclists to safely use the crosswalk, and that they failed to warn of the dangerous condition.
All further statutory references are to the Government Code unless otherwise indicated.
The trial court granted motions for summary judgment, filed separately by the City and Caltrans, on the same three grounds: (1) there was no triable issue of material fact on design immunity (§ 830.6), an affirmative defense that shields a public entity from liability for creating a dangerous condition; (2) as a matter of law the intersection's lack of a traffic control signal was not dangerous (§ 830.4); and (3) Plaintiffs failed to establish the public entities had notice of the alleged dangerous condition (§§ 835, 835.2). In this appeal, Plaintiffs contend the court erred in granting summary judgment to the City because there are triable issues of material fact on all three grounds relied upon by the court. We disagree with Plaintiffs and therefore affirm the judgment.
Plaintiffs separately appealed from the summary judgment for Caltrans. In a companion opinion filed today, we also affirm that judgment. (Kabat v. State of California (November 21, 2024, G063082) [nonpub. opn.].)
FACTS
The City's summary judgment motion was also directed at the cross-complaint of the driver and the alleged owner of the car, for indemnity, declaratory relief, and apportionment of fault. Because only Plaintiffs appealed the trial court's ruling on the City's motion for summary judgment, we limit our summary of the facts to matters relevant to those claims.
I.
THE ACCIDENT
The following facts are taken from allegations in the complaint not controverted by the City, material facts in the separate statement deemed undisputed by both sides, or evidence submitted in support of or in opposition to the summary judgment motion that is essentially uncontroverted by the parties for the purpose of the motion.
On the morning of July 11, 2020, Hernan Javier Dell Aquila was driving westbound on Jeffrey Road in Irvine, heading toward the northbound I-405 onramp from Jeffrey Road (the Jeffrey onramp). The speed limit for Jeffrey Road is 50 miles per hour. The are two speed limit signs facing westbound traffic on Jeffrey Road, one about 220 feet west of Alton Parkway and another about 2000 feet east of the Jeffrey onramp. Dell Aquila was familiar with the area, having driven the route at least once a week in the past six months, and knew there was a crosswalk on the Jeffrey onramp.
The Jeffrey onramp crosswalk allows bicyclists and pedestrians to cross the Jeffrey onramp. It is about 24 feet long, comprising one 12-foot travel lane for the Jeffrey onramp that is exposed to traffic and a left shoulder and a right shoulder that do not carry traffic. The travel lane portion of the crosswalk is marked by two parallel 12-inch wide white stripes that provide a crossing of about 10 feet wide. There are two standard Caltrans yellow-and-black pedestrian crossing signs facing traffic approaching the Jeffrey onramp. One sign is located about 150 feet ahead of the crosswalk. The other is at the north end of the crosswalk, and directly below it is a sign of an arrow pointing down and toward the foot of the crosswalk. The crosswalk within the Jeffrey onramp is not signalized, but the crosswalk within the offramp from the I-405 freeway northbound at Jeffrey Road is signalized.
At the same time Dell Aquila was driving, Plaintiffs' daughter, Barbora Kabatova (Kabatova), was bicycling in the area. As Dell Aquila's car entered the Jeffrey onramp, it struck Kabatova as she was crossing the Jeffrey onramp crosswalk. The collision occurred on the Jeffrey onramp, 23 feet north of Jeffrey Road. Kabatova died from injuries caused by the collision.
It is not clear from the record whether Kabatova was biking or walking her bicycle through the crosswalk.
The Jeffrey onramp is part of a larger I-405 freeway interchange that is owned and controlled by Caltrans. The interchange was originally constructed by the predecessor agency to Caltrans, formerly known as the State of California Division of Highways, based upon plans that were prepared and completed in 1967 (the 1967 plans). The interchange underwent improvements twice, once based on plans completed in 2006 (the 2006 plans) and most recently based on plans completed in 2015 (the 2015 plans).
II.
THE RELEVANT PLEADINGS
A. The Complaint
Plaintiffs sued Dell Aquila, Caltrans, the City, and others for Kabatova's death. The sole cause of action asserted against the public entities was liability for dangerous condition of public property under section 835 et seq., based on the following allegations.
The public entities designed, built, owned, altered, inspected, and maintained the subject area where the accident occurred, including the crosswalk, intersection, and street or highway. The subject area "possessed physical characteristics in its design, location, features, and/or relationship to its surroundings that endangered the users using the crosswalk." The posted speed limits were too high such that pedestrians and bicyclists who visually check for traffic approaching the Jeffrey onramp would not be able to determine if they had enough time to safely traverse the entire crosswalk before a vehicle hit them. The design, construction, and maintenance of the bike path next to Jeffrey Road leading up to the Jeffrey onramp was dangerous and unsafe because it did not provide pedestrians and bicyclists with a safe way to cross the highway.
The public entities knew or should have known the Jeffrey onramp was dangerous; was poorly designed, constructed and maintained; and had a substantial history of similar accidents and near-hits. The public entities, however, "failed to make any proper changes or take any precautions to ensure the safety of the pedestrians and/or bicyclists." They failed to provide adequate warnings and signs, failed to place sufficient traffic controls, failed to monitor the speed limit, failed to properly mark the crosswalk, and failed to build, design, and maintain the subject area "so as to constitute a trap condition" where motorists approaching the Jeffrey onramp and pedestrians and bicyclists using the crosswalk couldn't see one another. They "did not install any safety measures," such as placing a traffic signal light, installing proper signage, and placing proper posted speed limits.
Had the public entities "installed a proper traffic signal, placed proper warning signals and proper posted speed limits," Dell Aquila "would have observed the traffic signal, the proper warning signals, obeyed the speed limit and thereby avoid[ed striking and killing Kabatova]." Plaintiffs suffered resulting damages, including substantial medical expenses, funeral and burial expenses, and emotional damages.
B. The City's Answer
In response to the complaint, the City filed a general denial and asserted affirmative defenses, including three statutory exceptions limiting liability for claims involving a dangerous condition: (1) section 830.4, which provides that the mere failure to provide certain regulatory traffic control signals, signs, and distinctive roadway markings is not a dangerous condition; (2) section 830.6, which gives public entities design immunity for injuries caused by qualifying preapproved plans or designs; and (3) section 830.8, which gives public entities limited signage immunity for injuries caused by the failure to provide certain traffic signals, signs, markings, or devices.
III.
THE SUMMARY JUDGMENT MOTION
The City filed a motion for summary judgment on the complaint, or in the alternative, summary adjudication of four issues: (1) the City did not own or control the Jeffrey onramp crosswalk; (2) the City enjoyed design immunity from the alleged dangerous condition of property; (3) the City did not have actual or constructive notice of the alleged dangerous condition; and (4) the City cannot be held liable for the absence of signals or signage.
Plaintiffs did not dispute that Caltrans owned and controlled the crosswalk at the time of the collision for purposes of the motion. Instead, they argued four main points: (1) the City exerted considerable control over the roadway design because it prepared the plans for the Jeffrey Road intersection; (2) the City didn't meet its burden of showing design immunity, specifically the elements of discretionary approval and reasonableness of design; (3) triable issues of fact exist concerning whether the configuration of the roadway and crosswalk created a dangerous condition; and (4) the City could not rely on sections 830.4 and 830.8 because the dangerous condition was a concealed trap, which is an exception to signage immunity.
The trial court granted the motion, citing three main grounds. First, the City met its initial burden of establishing the defense of design immunity (§ 830.6), but Plaintiffs failed to raise a triable issue of material fact in opposition. Second, the City showed as a matter of law the intersection's lack of a traffic control signal was not dangerous. (§ 830.4.) Third, the City showed Plaintiffs cannot establish the City had actual or constructive notice of the alleged dangerous condition.
The court entered judgment accordingly, and Plaintiffs timely appealed.
DISCUSSION
I.
STANDARD OF REVIEW
We review the grant of summary judgment de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 (Merrill).) "[W]e apply the traditional three-step analysis used by the trial court, that is, we (1) identify the pleaded issues, (2) determine if the defense has negated an element of the plaintiff's case or established a complete defense, and if and only if so, (3) determine if the plaintiff has raised a triable issue of fact." (Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 175, fn. omitted (Meddock).) We "consider[ ] all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports." (Merrill, at p. 476.) "Because a summary judgment denies the losing party its day in court, we liberally construe the evidence in support of that party and resolve doubts concerning the evidence in that party's favor." (Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 255.)
II.
DANGEROUS CONDITION OF PUBLIC PROPERTY
Under the Government Claims Act (§ 810 et seq.), "a public entity is not liable for injuries except as provided by statute." (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829 (Brown); § 815). "[S]ection 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property." (Brown, at p. 829.) "To establish liability under section 835, a plaintiff must show: '(1) "that the property was in a dangerous condition at the time of the injury"; (2) "that the injury was proximately caused by the dangerous condition"; (3) "that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred"; and (4) either (a) that a public employee negligently or wrongfully "created the dangerous condition" or (b) that "[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."'" (Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 653 (Tansavatdi).)
"Thus, section 835 expressly authorizes two different forms of dangerous conditions liability: an act or omission by a government actor that created the dangerous condition (§ 835, subd. (a)); or, alternatively, failure 'to protect against' dangerous conditions of which the entity had notice (id., subd. (b))." (Tansavatdi, supra, 14 Cal.5th at p. 653.) The phrase "protect against" includes "warning of a dangerous condition." (§ 830, subd. (b).)
Here, Plaintiffs contend there are triable issues of material fact on both theories of liability. We address each theory in turn.
III.
LIABILITY FOR CREATING A DANGEROUS CONDITION
The trial court found the City had established design immunity and that Plaintiffs failed to meet their shifted burden of showing a triable issue of material fact concerning this defense. Rather than presenting evidence to refute the second element of the defense, Plaintiffs argued the City had not carried its initial burden of establishing that element. The trial court found, however, that the City established the second element, discretionary approval, through expert testimony and documents showing state engineers approved the 1967 plans, the 2006 plans, and the 2015 plans. We agree with the court and further conclude the City met its initial burden of showing discretionary approval of the plan or design prior to construction, as a matter of law.
Although Plaintiffs also argued below that the City failed to establish the third element of design immunity (reasonableness of the design), they have abandoned this argument by failing to raise it on appeal. (Meddock, supra, 220 Cal.App.4th at p. 175, fn. 2 [theories advanced in opposition to summary judgment at trial level that are not raised on appeal are deemed abandoned].)
Even when a plaintiff shows a public entity created a dangerous condition of public property (§ 835, subd. (a)), the public entity may still escape liability under that theory "by raising the affirmative defense of design immunity. (§ 830.6.)" (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66, italics omitted.) "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." (Id. at p. 69.) To successfully claim the immunity, a public entity "must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design." (Id. at p. 66.)
Discretionary approval "'simply means approval in advance of construction by the legislative body or officer exercising discretionary authority.'" (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940 (Grenier).) It is satisfied by showing the plan or design was either (1) "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 (2) "prepared in conformity with standards previously so approved." (§ 830.6; see Hampton v. County of San Diego (2015) 62 Cal.4th 340, 350.) If the relevant facts are undisputed, the issue of discretionary approval may be resolved as a matter of law. (Grenier, at p. 940.)
"Discretionary approval need not be established with testimony of the people who approved the project. Testimony about the entity's discretionary approval custom and practice can be proper even though the witness was not personally involved in the approval process." (Dobbs v. City of Los Angeles (2019) 41 Cal.App.5th 159, 161 (Dobbs); Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 947; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1263.) "A detailed plan, drawn up by a competent engineering firm, and approved by [the public entity's] engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval." (Grenier, supra, 57 Cal.App.4th at p. 940.)
Here, the City presented undisputed evidence of discretionary approval of the 1967 plans and the 2006 plans through the expert declaration of Rock Miller, a licensed civil engineer and licensed traffic engineer for over 45 years. Caltrans owns and controls the Jeffrey onramp, which is part of the Jeffrey interchange. It "ha[s] full possession and control of all state highways . . . [and] is authorized and directed to lay out and construct all state highways ...." (Sts. &Hy. Code, §§ 20, 90.) It is the responsibility of Caltrans to "improve and maintain the state highways." (Id., § 91.) It "may delegate to any such city or county any part of the powers and jurisdiction vested by law in [it], except the power of approval, with respect to any portion of any such state highway within such city or county." (Id., § 116, italics added.) And it "shall determine the kind, quality, and extent of all highway work done under its control, and may prepare and approve all plans, specifications, and estimates for all such work." (Id., § 137.) "The design of, the drafting of specifications for, and the inspection and approval of state highway structures shall be by [licensed] civil engineers." (Id., § 137.6.)
The Jeffrey interchange was originally constructed by the predecessor agency to Caltrans, formerly known as the State of California Division of Highways, based upon the 1967 plans. The 1967 plans established the configuration of the interchange, the onramp, and the nearby offramp intersection. The coversheet to the 1967 plans indicates the plans were approved in 1967 by the State Highway Engineer, registered Civil Engineer No. 5945, and signed by six other State employees.
The 2006 plans modified the Jeffrey Road interchange: They widened the overcrossing and the Jeffrey Road approach to provide three lanes in each direction; constructed the right turn lane approaching the freeway; modified the median gore that separates the onramp from Jeffrey Road; and showed reconstruction of sidewalk. As part of this improvement project, Caltrans issued an Encroachment Permit in 2004 to the City, granting it permission to "'Construct Improvements within the Interchange on State Route 405 and Jeffrey Road in the City of Irvine.'" It is undisputed that the 2006 plans were prepared for the City and approved by Caltrans. The 2006 plans also were approved by the City Council, and a staff report to the City Council indicates the Director of Public Works and the City Manager recommended approving the project. The 2006 plans bear the stamp of Randal D. Ratzlaff, Registered Civil Engineer No. 56867.
The foregoing evidence satisfies the City's burden of showing discretionary approval, as a matter of law. (Dobbs, supra, 41 Cal.App.5th at p. 161; Grenier, supra, 57 Cal.App.4th at p. 940.)
Although the 2015 plans also pertained to the Jeffrey interchange, there is no suggestion the City played a role in that improvement.
In opposition, Plaintiffs argue the City's evidence is insufficient to meet their initial burden because it did not show the specific engineers who approved the plans had been delegated or vested with discretionary authority to approve them. In support of this argument, Plaintiffs rely heavily on Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451 (Castro). That case is distinguishable.
In Castro, the city had implemented certain safety features to a crosswalk pursuant to plans approved by the city council. (Castro, supra, 239 Cal.App.4th p. 1454.) 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.) The beacon later became the subject of a personal injury lawsuit, which the city prevailed on at summary judgment on the basis of design immunity. (See id. at pp. 1453-1455.) The city had argued a municipal code vested the city employee, who was not a member of the city council, with discretionary authority to add the beacon. (Id. at p. 1456.) The appellate court reversed. (Id. at p. 1453.) In rejecting declarations by current and former city employees that the employee who ordered the beacon was authorized to approve a design for it (id. at p. 1456), the appellate court explained that design immunity requires "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 1457).
Here, unlike in Castro, the Legislature has vested Caltrans (and only Caltrans) with discretionary authority to approve highway plans and has required a licensed civil engineer sign off on them. (Sts. &Hy. Code, §§ 20, 90-91, 116, 137, 137.6.) As an entity, Caltrans can act only through its employees or agents. The City here furnished the 2006 plans signed by licensed engineers and-which Plaintiffs do not dispute-were approved by Caltrans. Those signatures reasonably support the uncontradicted inference that the plans received Caltrans's discretionary approval. (Merrill, supra, 26 Cal.4th at p. 476.)
Because we conclude the City established discretionary approval under the first alternative, we do not reach the City's other arguments that it did not own or control the Jeffrey onramp when the accident occurred and that the plan or design conformed with previously approved standards.
IV.
LIABILITY FOR FAILING TO WARN OF A DANGEROUS CONDITION
The trial court also found the City had shown Plaintiffs cannot establish actual or constructive notice of a dangerous condition (§ 835.2), a required showing to prevail under the failure-to-warn theory (§ 835, subd. (b)). On appeal, Plaintiffs argue the issue of notice was disputed and it should be decided by the jury. We are unpersuaded.
Regardless of design immunity, a public entity may still be liable for "fail[ing] to warn of [the] immunized design element" (Tansavatdi, supra, 14 Cal.5th at p. 660) if it "had actual or constructive notice of the dangerous condition under [s]ection 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition" (§ 835, subd. (b)). A "'[d]angerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." (§ 830, subd. (a).) Public property can "be in a dangerous condition 'because of the design or location of the improvement, the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.'" (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 149, italics omitted.)
A dangerous condition, however, does not arise from the "mere[ ] . . . failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in [s]ection 21460 of the Vehicle Code." (§ 830.4.) Generally, a public entity is not liable under section 835 "for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code." (§ 830.8.) This is commonly called signage immunity. (Tansavatdi, supra, 14 Cal.5th at p. 660.)
An exception to signage immunity applies to concealed traps. (Tansavatdi, supra, 14 Cal.5th at p. 654.) Under the concealed trap exception, section 830.8 does not exonerate a public entity "for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care." (§ 830.8; Tansavatdi, supra, 14 Cal.5th at p. 654.)
Even if the dangerous condition is a concealed trap, "the plaintiff must prove the public entity had notice of the dangerous condition" to prevail on a claim under section 835, subdivision (b). (Tansavatdi, supra, 14 Cal.5th at p. 660 .)
Plaintiffs rely on three cases for the proposition that the notice requirement does not apply if the public entity created the dangerous condition. Plaintiffs are mistaken. All three cases predate Tansavatdi. (Brown, supra, 4 Cal.4th 820; Curtis v. State of California ex rel. Dept. of Transportation (1982) 128 Cal.App.3d 668; Pritchard v. Sully-Miller Contracting Co. (1960) 178 Cal.App.2d 246, 249.) In addition, Plaintiffs misconstrue Brown and Curtis, neither of which supports their position. Brown concluded the opposite of what Plaintiffs urge: "Because there was no evidence that the District had notice of the allegedly dangerous condition, the superior court correctly ruled that the District could not be liable under section 835, subdivision (b)." (Brown, at p. 829.) And Curtis stands for the uncontroversial proposition that "either negligence or notice will suffice" to recover under section 835. (Curtis, at p. 693.) In other words, a plaintiff needs to show the public entity either created the dangerous condition under subdivision (a) or had notice of it under subdivision (b) of the statute. (Curtis, at pp. 691-692.) Finally, Pritchard-issued over half a century ago- addressed the Public Liability Act of 1923. (Pritchard, at p. 249.) The Public Liability Act of 1923 was replaced by the Government Claims Act (Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 121, fn. 12), which includes the current requirement of notice to prevail under section 835, subdivision (b).
Thus, under the failure-to-warn theory, Plaintiffs had to show the City had notice, actual or constructive, of the dangerous condition. "To establish actual notice, '[t]here must be some evidence that the employees had knowledge of the particular dangerous condition in question'; 'it is not enough to show that the [public entity's] employees had a general knowledge' that the condition can sometimes occur." (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 519.) To establish constructive notice, the plaintiff must prove "the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." (§ 835.2, subd. (b).)
Here, the City offered evidence it had no notice of the alleged dangerous condition. According to expert Miller, the daily traffic on the Jeffrey onramp is about 10,000 vehicles per day, corresponding to about 3.5 million vehicles per year and about 35 million vehicles in the decade before the subject accident. It is undisputed that a database maintained by the California Highway Patrol contained a summary of traffic collision reports that, by law, must be provided by all agencies responsible for preparing collision reports in the State of California, and that a report generated from that database showed no prior accidents involving a bicyclist at the Jeffrey onramp. It is also undisputed that a Caltrans program, which monitors the location of reported traffic collisions on the state highway system, showed only one accident involving a pedestrian on the Jeffrey onramp. And it is undisputed that the pedestrian accident "was not similar" to the subject accident because it "involved a pedestrian instead of a bicyclist and the accident occurred at 8:30 p.m. five years prior to the subject accident." With this, the City met its burden of showing it did not have notice of the dangerous condition alleged by Plaintiffs.
On the issue of notice, Plaintiffs submitted a declaration from their expert, Ed Ruzak, who opined: The design of Jeffrey Road westbound at and near the Jeffrey onramp "provided a false sense of security for motorists and bicyclists traveling westbound on Jeffrey Road with due care" and "forced [them] into a conflict with insufficient warning." The lack of a traffic signal was "sub-optimal" and "constitute[ed] a trap" because it "rendered the area deceptive to motorists and bicyclists;" it also made the bicyclists crossing the Jeffrey onramp susceptible to being hit by vehicles. "[Caltrans's] passive accident-based system of determining traffic control safety measures is inadequate to provide [Caltrans] and the City with sufficient notice of this dangerous condition. There is no evidence in this case that either [Caltrans] or the City queried the . . . databases at any time before the subject accident occurred."
"A party '"'cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a trial issue of fact.'"'" (Menges v. Department of Transportation (2020) 59 Cal.App.5th 13, 23.) Nor can it "'manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions, devoid of any bias, explanation or reasoning.'" (Ibid.) We conclude Ruzak's opinion that the Caltrans databases are "inadequate" to provide notice is conclusory and does not create a triable issue concerning the issue of notice.
We also do not see the logic behind Plaintiffs' argument that there is no evidence the public entities used the databases before the subject accident occurred. The argument appears to respond to language in section 835.2, subdivision (b), which requires a plaintiff alleging constructive notice of a dangerous condition to prove, among other things, that the condition "was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." Evidence of due care includes "[w]hether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate . . . to inform the public entity whether the property was safe ...." (§ 835.2, subd. (b)(1), italics added.) But regardless of when the databases were used, the relevant fact here is that they showed no similar accidents in the past decade. Thus, even if the City or Caltrans had made earlier database queries, they would have not been placed on notice of any accidents like the one here.
For these reasons, the trial court properly found no triable issues of material fact with respect to the City's lack of notice of the alleged dangerous condition.
DISPOSITION
The judgment is affirmed. Respondent to recover its costs on appeal.
WE CONCUR: MOORE, ACTING P. J., SANCHEZ, J.