Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS021445
Parrilli, J.
This appeal stems from a personal injury action arising from a car accident on Interstate 80 (“I-80”). Plaintiff and appellant Charles Rafferty appeals the superior court’s grant of summary judgment in favor of defendant and respondent, State of California et al. (“the State”). Appellant contends the superior court erred in granting summary judgment based on respondent’s affirmative defense of design immunity. According to appellant, respondents failed to carry their burden of proving design immunity. He also alleges the design immunity defense was lost because of changed circumstances. We affirm.
I Factual & Procedural Background
On December 13, 2001, appellant’s pick-up truck was rear-ended while he waited to exit I-80 West onto westbound Jameson Canyon Road (Route 12). At the time of the collision, appellant was stopped in the right lane of I-80 due to heavy traffic backed up from the Route 12 exit ramp. A car driven by Jason Gross moved across from faster-moving lanes into the right hand exit lane for Route 12. Gross rear-ended appellant’s car at a speed of about fifteen miles per hour under stop-and-go conditions.
On December 5, 2003, appellant filed a Judicial Council Form complaint against the State of California, the California Department of Transportation (Caltrans), and Does 1-100 for damages sustained in the rear-end collision. Regarding the sole cause of action for dangerous condition of public property, appellant alleged respondent “negligently, carelessly, and unreasonably built, constructed, contracted, erected, repaired, located, inspected and/or maintained the subject roadway and adjacent off-ramps/exits so as to allow through traffic exiting I-80 at Jameson Canyon (SR-12) to back up onto I-80 and into the lanes of traffic causing congestion and causing stop and go traffic conditions thus exposing drivers on said roadway to the hazards associated with stop and go traffic and in particular rear-end collisions.”
On January 8, 2004, respondent filed its answer, including the affirmative defenses of failure to state a claim and design immunity. On December 30, 2004, respondent moved for summary judgment based on lack of dangerous condition and design immunity. Appellant filed an opposition on June 8, 2005. The trial court filed its order granting summary judgment on August 12, 2005.
With respect to any theory of negligent maintenance, the trial court concluded appellant alleged only a “legal conclusion” without offering any ultimate facts in support of the allegation. Next, the trial court concluded “the theory properly put at issue by the first amended complaint was negligent design.” Last, the trial court concluded respondent had established design immunity and immunity had not been lost because of changed physical conditions. In so ruling, the court stated: “Increased traffic alone is not a sufficient basis for loss of design immunity.”
II Discussion
A. Standard of Review
We review the grant of summary judgment de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) A motion for summary judgment “shall be granted if 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).) To obtain summary judgment, defendant must show “either that one or more elements of plaintiff’s claim could not be established, or that there existed a complete affirmative defense to it. (Code Civ. Proc., § 437c, subds. (a), (o)(1), (2), (p)(2).)” (Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184.) The moving party bears the burden of persuading the court. (Ibid.) In assessing a motion for summary judgment, “[t] moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.” (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1369.) Here, respondent persuaded the trial court appellant had no evidence to support any claim for negligent maintenance and that the State was entitled to the affirmative defense of design immunity.
B. Analysis
The statutory defense of design immunity is described in Government Code section 830.6, which provides: “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 therefore or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.” (Ibid.)
“ ‘In other words, a public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.’ [Citation.]” (Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, 58.) Defendant bears the burden “of establishing each element of its design immunity defense in support of its summary judgment motion. . . .” (Id. at p. 60.)
(1) Causal Relationship Between Design and Accident
Appellant asserts respondent relied solely on the allegations of the complaint to establish the necessary causal link between the highway design and the accident. Appellant contends the allegations in the complaint are insufficient evidence of a causal relationship between design and accident. This contention has no merit.
In moving for summary judgment, “[a] defendant . . . in addition to his declaration, [may] rely upon an allegation of the complaint.” (Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146.) “A defendant moving for summary judgment may establish that an essential element of the plaintiff’s cause of action is absent by reliance on the pleadings, competent declarations, binding judicial admissions contained in the allegations of the plaintiff's complaint, responses or failures to respond to discovery, and the testimony of witnesses at noticed depositions.” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1375; Fuller v. Dept. of Transportation (2001) 89 Cal.App.4th 1109, 1114 [plaintiff cannot deny the efficacy of his own allegations when they are used to support a summary judgment motion against him].) Here, the complaint alleged respondent “negligently, carelessly, and unreasonably built, constructed, contracted, erected, repaired, located, inspected and/or maintained the subject roadway . . . so as to allow through traffic exiting I-80 at [Route 12] to back up onto I-80 . . . causing stop and go conditions thus exposing drivers on said roadway to the hazards associated with stop and go traffic and in particular rear-end collisions.” We agree with the trial court the gravamen of the complaint is negligent design, and the allegations in the complaint plainly provide a causal link between design and the accident.
Nonetheless, appellant contends the allegations of the complaint alone are insufficient to show a causal link between design and accident because the complaint alleges “multiple possible concurring proximate causes.” Accordingly, appellant continues, respondent had to show design defect caused the accident by “provid[ing] evidence to rule out failure to repair, maintain or inspect” in order to obtain summary judgment. We disagree.
In the first place, in its order granting summary judgment the trial court ruled appellant failed to state a claim for negligent maintenance because the complaint “alleged no ultimate facts to support this theory,” and the same can be said for the remainder of appellant’s supposed “multiple possible concurring proximate causes.” Appellant did not seek reconsideration of this ruling in the trial court, nor does he challenge it on appeal. Accordingly, the issue is waived and the trial court’s ruling stands. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [if no legal argument with citation of authorities is furnished on a particular point then appellate court may treat it as waived and pass it without consideration].) Thus, appellant cannot expect respondent to disprove claims which appellant has failed to sufficiently allege.
Moreover, even if the trial court had not so ruled, appellant cannot rely on the pleadings alone in opposing summary judgment, but must set forth “specific facts demonstrating that a triable issue of material fact exists as to the cause of action.” (Eisenberg v. Alameda Newspapers, Inc., supra, 74 Cal.App.4th at p. 1375; Code Civ. Proc., § 437c, subd. (p)(2).) The record includes no facts supporting appellant’s theory of negligent maintenance. Appellant claims his expert, Harry Krueper “stated that maintenance was a significant factor” in causing the accident. This claim is not borne out by the record. Krueper does not assert lack of maintenance caused the accident. Rather, Krueper talks about how such factors as changed circumstances and increased traffic volume at nearby intersections have allegedly created an unsafe condition at the accident location on I-80. In sum, respondent established a causal relationship between the design of the roadway and the injury at issue in the litigation.
(2) Discretionary Approval of Design
(a) Background
In support of its motion for summary judgment, respondent submitted the declaration of Edward Ruzak together with Exhibits A-J. Ruzak has over 40 years of practical experience in civil and highway engineering. From 1962-1966, he worked for Caltrans on the design of freeway projects, arterial highways and traffic signals, primarily in “traffic investigations with emphasis on design utilizing standard applications, acceptable guidelines and reasonable practices.” From 1966-1971, Ruzak worked for the County of San Mateo as County Traffic Engineer, applying traffic engineering principles to ensure conformance with State and National standards in the area of traffic control, roadway construction and maintenance work areas, as well as geometric design. Additionally, Ruzak had over twenty-five years experience in project management with major consulting engineering firms before establishing his own consulting firm in 1987, which specializes in street, highway, and transportation consultation.
In his declaration, Ruzak states he was engaged by respondent to investigate and advise on roadway design, traffic engineering operations and safety aspects of I-80 in and around the location of the accident. For purposes of this evaluation, Ruzak states he reviewed, among other things, copies of Department of Transportation (“DOT”) “photologs of westbound approaches to and beyond the subject accident area taken prior to the date of the accident”; copies of “the original design and “As-Built” project Plans for Construction on State Highway in Solano County between Route 8 in Cordelia and 0.3 miles east of Chadbourne Road with connection to Route 74 at Cordelia, State Contract 60-107021, approved on January 18, 1960, and accepted as-built” (Exhibit B). Ruzak states he investigated a stretch of I-80 “from the Green Valley Overcrossing (pm 12.738) to the Junction of Interstate 80/Route 12 separation (pm 11.976) . . . [which] encompasses the area of approach to and past the subject accident.”
Referring to the as-built plans for the construction of Route 7 (now I-80), and in particular “to Sheet 1 of 134 of the as-built plans, Exhibit B,” Ruzak states “the Green Valley Road Overcrossing Bridge No. 23-138 is shown at approximately station 190” and “the area of the subject collision is shown easterly in bold black lines as the alignment of Interstate 80.” Ruzak states the “subject collision area is between these limits” and that project plans for this section were “approved on January 18, 1960 by the State Highway Engineer for the California Division of Highways, Mr. J.C. Womack, Civil Engineer No. 5945.” Further, Ruzak states the project plans were also approved on that date by the District Engineer, the Engineer of Design for the California Division of Highways, and the Director of Public Works for the California Division of Highways, Mr. Robert Bradford.” Ruzak adds “[t]he project plans for this contract number 60-10TC21 are as-built plans.”
(b) Merits
Appellant contends respondent did not meet the second element of design immunity because it failed to show the design received proper discretionary approval. First, appellant asserts the Ruzak Exhibits do not constitute admissible evidence because Ruzak was not qualified to authenticate the documents due to his lack of personal knowledge regarding preparation of the plans and his lack of expertise and experience as to how they were approved. Second, appellant asserts even if the documents are admissible they do not satisfy the discretionary approval element because they describe a project which has undergone substantial changes and does not include the I-80 to Route 12 connector ramp.
(i) Evidentiary Objection
Appellant’s evidentiary contention lacks merit. First, in order to preserve an evidentiary issue for appeal, the appellant must obtain a definitive ruling from the trial court judge. Failure to obtain a ruling waives the objection from consideration on appeal and the objected-to evidence is considered part of the record. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1 (Ann M.) [where trial court did not rule on evidentiary objections they are waived and not preserved for appeal, and appellate court “must view the objectionable evidence as having been admitted in evidence and therefore as part of the record”]; Sharon P. v. Arman Ltd. (1999) 21 Cal.4th 1181, 1186, fn. 1 (Sharon P.) [where record contains no rulings on objections they are deemed waived and evidence is viewed as having been admitted in evidence as part of the record for purposes of the appeal] [disapproved on other grounds by Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, fn. 23 at 854-855].)
At the summary judgment hearing, appellant argued the design documents were inadmissible but the trial court adopted its tentative ruling granting respondent summary judgment. A colloquy then ensued between the trial court and appellant’s counsel as follows:
Counsel: As to the evidence, your honor?
Court: The Court has reviewed all the admissible evidence and, based upon the admissible evidence, I find that the State has carried its burden, and I’m granting the Motion for Summary Judgment.
Counsel: Can I argue, as an aside, just the evidence, your Honor, or - - - -
Court: Sir, I’ve made my ruling. Thank you.
In announcing the above evidentiary ruling, the trial court appears to follow Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 (Biljac), in which the Court of Appeal, First District, Division 2 held that a trial judge need not rule on each evidentiary objection, but could preserve the record by stating, “I am going to disregard all those portions of the evidence that I consider to be incompetent and inadmissible.” (Id. at p. 1419, fn. 3.) However, Division 2 recently repudiated Biljac: “Today, seemingly wiser, we reject that holding, and hold instead, as dictated by two California Supreme Courts cases [Ann M., supra, 6 Cal.4th 666 and Sharon P., supra, 21 Cal.4th 1181] and consistent with all published, post-Biljac Court of Appeal opinions, that a trial judge’s failure to rule on properly presented objections results in their being impliedly overruled, the effect of which is that the objected-to evidence is in the record for purposes of appellate review.” (Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566.) As seen from the colloquy above, appellant did not obtain a ruling on his evidentiary objection. After the trial court delivered its ruling, counsel sought to continue argument, but did not specifically object to, or seek clarification of, the trial court’s evidentiary ruling, either orally at the hearing or subsequently in writing. It is unclear from the passage quoted whether it was the admissibility of the evidence, or what that evidence established that appellant sought to argue. Simply put, appellant failed to obtain a ruling from the trial court on his evidentiary objection, and the objection is deemed waived on appeal. As one court noted, this may be a “bitter pill” for a party to swallow. Vineyard Springs Estates, v. Superior Court (2004) 120 Cal.App.4th 633, 643 (Vineyard Springs). However, there are good reasons for such strong medicine. As noted in Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, “it is not the function of an appellate court to make such evidentiary rulings in the first instance. . . . Rather, . . . [t]rial courts have a duty to rule on evidentiary objections[,] [and] [w]hen that duty is not performed, appellate courts are left with the nebulous task of determining whether the ruling that was purportedly made was within the authority and discretion of the trial court and was correct.” (Id. at p. 235.) “This is not always a simple task, and not one suitable to this court, normally sitting as a three-judge panel committed to reviewing issues of law, not fact.” (Id. at p. 236.)
If a trial court for some reason refuses to issue an evidentiary ruling in the face of repeated oral and written requests, a party may petition for a writ of mandate directing the trial court to rule on the objections. (Vineyard Springs, supra, 120 Cal.App.4th at p. 643 [issuing peremptory writ of mandate directing the trial court to vacate summary judgment order and rule on all evidentiary objections proffered by defendant].)
However, even if appellant had not waived the evidentiary objection, the trial court did not err in admitting the documents into evidence. Signed copies of the “As Built” plans for a roadway are evidence of discretionary approval for that roadway. (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 728 (Alvarez), abrogated on other grounds by Cornette v. Department of Transportation (2001) 26 Cal.4th 63.) The signatures of public officials, acting in their official capacity, are presumed genuine. (Alvarez, supra, 79 Cal.App.4th at p. 728; Evid. Code, § 1453.) The state submitted fifteen pages of as-built plans for the roadway in question. The signatures of public officials appear on the plans. The plans are presumed authentic and are acceptable evidence of discretionary approval. (Ibid; Becker v. Johnston (1967) 67 Cal.2d 163, 172-173, overruled on other grounds by Baldwin v. State of California (1972) 6 Cal.3d 424 [plans on their face indicated design approval from a public official]; Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 89-90, fn. omitted [“Respondent’s showing of a detailed plan, drawn up by a competent engineering firm, and approved by the city council in the exercise of its discretionary authority, is certainly persuasive evidence of both elements of prior approval and reasonableness for purposes of the design immunity defense.”]; Gov. Code § 830.6 [requiring discretionary approval from either “the legislative body of the public entity or by some other body or employee”].) And, Ruzak was amply qualified to attest to the authenticity of the as-built plans referenced in his declaration. Alvarez, supra, 79 Cal.App.4th 732 [“design and construction of highways, including the discretionary approval of project plans, . . . is [] the proper subject of expert testimony”].) In sum, respondent met its burden as to the second element of design immunity.
The copies of the plans in the record may have been reduced from their original size. It is not clear whether the original pages of plans appear on multiple pages of the record, accounting for why some pages are not signed.
(3) Substantial Evidence Supporting Reasonableness of Design
To meet the third element of design immunity, respondent must show by any substantial evidence that a reasonable public employee could have adopted the plan or design. (Gov. Code, § 830.6.) Substantial evidence means “evidence of solid value which reasonably inspires confidence.” (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940.)
Respondent offered the Ruzak declaration in support of its design immunity claim. Ruzak reviewed the as-built plans for the stretch of highway encompassing the accident location; traffic volume history for I-80 in the vicinity of Green Valley Road and Route 12; DOT photologs of the westbound approaches to and beyond the accident area; and, DOT information regarding westbound accident history, including rear-end accident history, in the vicinity of the accident site. In addition, Ruzak completed field surveys of the scene of the accident under both daylight and night time conditions.
Ruzak stated that the section of I-80 where the accident occurred met or exceeded all relevant DOT standards for lane width, shoulder width, visibility, signage and road markings. Ruzak also notes although traffic volume “has increased significantly over forty years since the initial project plan [was implemented], [¶] . . . the sight distance on Interstate 80 between Route 12 and the Green Valley Overcrossing remains excellent and exceeds the Caldot standards for an 80 mph facility. There are no sight obstructions for westbound traffic for over two (2) miles.” Further, Ruzak states the data for the five year period between 1996 and 2001 shows there were fifty-two reported rear end type collisions. Of these, “approximately 80 percent of the collisions occurred during the morning peak period from 0630 to 0815”; approximately 60 percent “were property damage only collisions”; no fatalities were reported; “the majority of the drivers that rear ended a vehicle reported that they saw or knew that the traffic ahead was stopping, [¶] [and] approximately 95 percent of the rear end collisions were during stop-and-go type traffic where speeds were low”; and “less than 10 percent of the rear-end collisions involved drivers that changed a lane and found themselves confronted by a stopped vehicle which they ultimately rear-ended.” For the same five-year period, “144 million vehicles traveled westbound on Interstate 80 through the subject section.”
Based on all this, Ruzak opined “the rear-end collisions are occurring at slow speeds, over a short period of the day and do reflect driver error as opposed to a condition [of] the roadway other than normal peak traffic slowing or stopping.” He further opined “[t]he number of vehicles traversing this straight section of roadway over the five years prior to the subject accident without an inordinate number of similar type collisions, further attests to the fact that from a highway and engineering standpoint the subject accident was a consequence of the actions of the users and dynamics of the accident itself rather than any feature of the roadway.” Ruzak’s expert opinion testimony and its supporting documentation provide sufficient evidence the highway design was reasonable. (Grenier, supra, 57 Cal.App.4th at p. 941 [“Generally a civil engineer’s opinion regarding reasonableness is substantial evidence sufficient to satisfy this element.”]; Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 526 [approved engineering plans are “persuasive evidence of both elements of prior approval and reasonableness for purposes of the design immunity defense”].)
Appellant’s argument the State has failed to show reasonableness because Ruzak confined his analysis to the section of I-80 where the accident actually occurred and did not consider the SR 12 off-ramp or the preceding stretch of I-80 has no merit. Appellant cites no authority to justify requiring such an expansive analysis, nor does he assert any factual basis why the design of the Route 12 off-ramp or other sections of I-80 is negligent.
4. Loss of Design Immunity
Once established, design immunity can be lost only upon a showing of changed physical conditions at the relevant location. The State must also have been aware of the changed physical condition and had the opportunity to resolve any dangerous condition. (Baldwin v. State of California, supra, 6 Cal.3d 424, 427, 434.) Thus, although “[d]esign immunity does not necessarily continue in perpetuity[,] [t]o 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. [Citations]” (Cornette v. Department of Transportation, supra, 26 Cal.4th 63, 66.) Under this standard, plaintiff bears the burden of producing “substantial evidence that the design of the roadway at the accident location had become dangerous due to changed physical conditions.” (Weinstein, supra, 139 Cal.App.4th at p. 60.)
Appellant asserts the design has become dangerous because of a change in physical conditions, in particular a four-fold increase in the volume of traffic, which has placed greatly increased demands on I-80 and the connector ramp to Route 12. However, an increase in the volume of traffic alone does not show the plan or design has become dangerous because of a change in physical conditions. (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 808 [“An increase in traffic alone, however, is insufficient to establish the loss of the design immunity.”]; Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 7 [“the heavy use of any given paved road alone does not invoke the application of Government Code section 835.”].) Appellant acknowledges this. Nevertheless, he contends traffic congestion may be one factor, considered along with other physical changes to demonstrate a dangerous condition. Even if that’s true, appellant does not make a sufficient showing to raise a triable issue on any factor. His contention that increased traffic flow surpassed the capacity of either I-80 or the Route 12 off-ramp is not supported by the record. Appellant relies on the declaration of his expert, Harry Krueper. But Krueper did not discuss the capacity of these roadways, nor opine that the increased traffic volume exceeds their capacity. Kreuper does note a 400 percent increase in the volume of traffic between 1964 and 2001 on I-80 just the east of the Route 12 exit, and also notes significant modifications and alterations to I-80 approximately 2.5 miles east of the accident site However, this is not enough to raise a triable issue of material fact on the existence of a dangerous condition at the accident site. (Cf. Weinstein, supra, 139 Cal.App.4th at p. 60 (plaintiff’s reliance on increased traffic at accident location together with a corresponding increase in accidents insufficient to show loss of design immunity where “plaintiffs failed to produce evidence that either statistic made the condition of the roadway at the accident location inconsistent with state standards”].) Accordingly, appellant has failed to demonstrate a triable issue of fact on the loss of design immunity.
DISPOSITION
The judgment of the superior court is affirmed. Appellant shall bear costs on appeal.
We concur: McGuiness, P. J., Siggins, J.