Opinion
B292057
04-14-2020
NICHOLAS TOMASZEWSKI, Plaintiff and Appellant, v. CITY OF PALMDALE et al., Defendants and Respondents.
Parris Law Firm, R. Rex Parris, Alexander R. Wheeler, Jonathan W. Douglass and Ellery S. Gordon for Plaintiff and Appellant. Burke, Williams & Sorensen, Brian I. Hamblet and Kane Thuyen for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MC026483) APPEAL from an order of the Superior Court of Los Angeles County, Stephen I. Goorvitch, Judge. Reversed and remanded. Parris Law Firm, R. Rex Parris, Alexander R. Wheeler, Jonathan W. Douglass and Ellery S. Gordon for Plaintiff and Appellant. Burke, Williams & Sorensen, Brian I. Hamblet and Kane Thuyen for Defendants and Respondents.
INTRODUCTION
Plaintiff Nicholas Tomaszewski suffered serious injuries in an accident when his motorcycle collided with an automobile turning left in front of him. Plaintiff sued the driver, her husband, and defendant City of Palmdale (the City), contending, as relevant to this appeal, that the accident was caused by the dangerous condition of the intersection. The trial court granted defendant's motion for summary adjudication, concluding that the City was entitled to design immunity under Government Code section 830.6 and sign immunity under section 830.4. Plaintiff contends this was error. We agree, concluding that the City failed to meet its prima facie burden to establish immunity based on undisputed evidence. We therefore reverse the judgment and remand the matter for further proceedings.
All further statutory references are to the Government Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
I. Background
The accident occurred at the intersection of Sawgrass Drive and Bolz Ranch Road in the city of Palmdale. Bolz Ranch Road is an east-west roadway with one lane westbound and two lanes eastbound, as well as a dedicated bike lane on each outer edge. In the center of the road is a two-way left turn median marked by yellow and black lines. The posted speed limit on Bolz Ranch Road is 50 miles per hour. Bolz Ranch Road is flat and curves slightly in a north-west direction to the east of Sawgrass Drive. Sawgrass Drive is a residential two-lane roadway running north-south, with the southern portion ending in a stop sign at a "t-intersection" at Bolz Ranch Road. Bolz Ranch Road also has an approximately 170-foot-long dedicated right turn lane for westbound traffic to turn onto Sawgrass Drive.
The intersection is part of a planned subdivision, bordered by residential homes. Sometime between 2004 and 2005, the intersection was finished when Sawgrass Drive was constructed along with the adjacent subdivision. During that same period, the City made improvements to the intersection, including widening Bolz Ranch Road to its current configuration, adding the right turn lane, and constructing a wrought-iron fence extending along the north edge of the north sidewalk of Bolz Ranch Road, to the east of Sawgrass Drive, at the perimeter of the neighboring golf course.
Around 11:15 a.m. on August 21, 2015, plaintiff was riding a motorcycle westbound on Bolz Ranch Road, toward the intersection with Sawgrass Drive. At the same time, Saskia Theihzen was driving her SUV on Sawgrass Drive, approaching the intersection. According to Theihzen, she stopped at the stop sign, then checked for cross traffic, intending to make a left turn onto Bolz Ranch Road. To her left, she saw a white truck pulling into the right turn lane on Bolz Ranch Road, preparing to turn right onto Sawgrass Drive. She saw no other traffic in either direction, so she pulled into the intersection, across the westbound lane of Bolz Ranch Road, to make a left turn onto Bolz Ranch Road. At that point, she saw plaintiff approaching on his motorcycle, heading westbound on Bolz Ranch Road. Both drivers braked and plaintiff was ejected from his motorcycle, hitting his head on the SUV's front driver-side wheel. As a result, plaintiff suffered severe injuries resulting in permanent disability.
Plaintiff sued, alleging claims against Saskia and Mark Theihzen for negligence and against the City for dangerous condition of the road. In his first amended complaint filed October 19, 2016, plaintiff alleged that the intersection "was in a dangerous and defective condition . . . the configuration of the roadway created issues with the line-of-sight for vehicles using the intersection, and made the posted speed limit dangerous. Furthermore, there was a lack of signs, signals, striping, warnings, barriers, or other safety measures, which contributed to the dangers already present at the intersection."
II. Summary Judgment
A. Defendant's motion
The City moved for summary judgment, or in the alternative, summary adjudication in January 2018. The City argued that plaintiff could not meet his burden to prove the elements of a dangerous condition claim. The City also asserted it was entitled to summary adjudication based on two affirmative defenses: first, sign immunity pursuant to sections 830.4 and 830.8; and second, design immunity pursuant to section 830.6.
The trial court did not reach this argument, instead granting summary adjudication based on immunity. Likewise, the parties have not raised this issue on appeal. We therefore discuss it only to the extent relevant to the immunity issues.
Sections 830.4 and 830.8 provide immunity to a public entity from claims based on injuries caused by "the failure to provide traffic or warning signals, signs, markings, or devices described in the Vehicle Code," unless the signal was necessary to warn of a dangerous condition that "would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care." (§ 830.8.) Section 830.6 provides immunity from liability "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 . . . by . . . [an] employee exercising discretionary authority to give such approval, . . . 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 (b) a reasonable legislative body or other body or employee could have approved the plan or design."
The City claimed design immunity under a signage and striping plan. It presented a declaration from City Engineer (then City Traffic/Transportation Engineer) Guillermo Padilla, stating that in 2005, he reviewed and approved the signage and striping plan for the intersection. Attached to the declaration was a copy of the plan. Padilla's review included the "placement of markings, signage, and traffic controls adequate for ensuring safety at this Intersection"; he declared that the plans were prepared in conformity with industry standards. Padilla further stated that at the time he approved the plan, he had the discretionary authority to do so.
The City also provided a declaration from its engineering expert, John Fisher. He stated that he had reviewed, among other things, the 2005 signage and striping plan, traffic counts on Bolz Ranch Road, a 2013 spot speed study near the intersection, and two letters from the public complaining about the dangerousness of the intersection. Fisher also inspected the intersection in January 2018. Based on his inspection and review of the materials, he opined that there was "adequate stopping sight distance for a driver...on Bolz Ranch Road traveling at the posted speed limit to stop in time to avoid a collision with a vehicle from Sawgrass Drive that has already entered that lane." He further opined that there were "no observed deficiencies in the design, operation, or maintenance of Bolz Ranch Road." Fisher acknowledged that it was "not possible to achieve the guideline for corner sight distance[] as described in the HDM [Caltrans Highway Design Manual] due to the position of the fence on the golf course property." Nevertheless, he concluded that the "actual stopping sight distance at this location was measured at 450 feet," compared to the HDM requirement of 430 feet for a 50 miles-per-hour zone.
Those letters, dated in 2013 and 2014, contained complaints sent to the City warning of the visibility issues from the stop sign on Sawgrass Drive looking left down Bolz Ranch Road. The City responded in both instances that the "current controls are appropriate."
Fisher defined corner sight distance as "from the perspective of the driver waiting at the stopping point on the cross street," measured as the "required distance along the through street with the clear line of sight to cross it without requiring through traffic to radically alter their speed."
The City did not attach any other plans as evidence in support of summary judgment. In its moving papers and separate statement of undisputed material facts, the City cited only the 2005 signage and striping plan and the corresponding declarations from Padilla and Fisher as evidence material to its claim for design immunity.
B. Opposition
Plaintiff filed his opposition to summary judgment in April 2018. He argued that sign immunity did not apply, where, as here, the absence of regulatory markings was not the sole cause of the dangerous condition; rather, the dangerous condition was also caused by the configuration of the roadway. On the issue of design immunity, plaintiff argued that the City had failed to put forth a pre-approved design plan covering the layout of the intersection and the line of sight. Instead, the City had offered only the signage and striping plan.
In support of his opposition, plaintiff offered the declaration of his engineering expert, Dale Dunlap. Dunlap stated that his team performed a field inspection of the intersection on April 18, 2018. Dunlap also stated that he had reviewed two sets of street improvement plans for the area produced by the City and attached copies of those plans to his declaration as exhibits. The first, Street Improvement Plans for Tract No. 49016-01 (the 2002 plans), governed the widening of Bolz Ranch Road east of Sawgrass Drive. According to Dunlap, these plans "show the subject intersection as being in existence; however, it indicates that the plans for Sawgrass Drive are not included in this same set of plans." The plans also include the details for the iron perimeter fence. This set of plans bears a signature from the City Engineer approving the plans in December 2002; a separate signature appearing to be from the Plan Check Engineer approved revisions in 2003 regarding the fence.
The second set of plans, Street Improvement Plans for Tract No. 53857 (the 2003 plans), covered the segment of Bolz Ranch Road west of Sawgrass Drive. Dunlap noted that none of the plans provided by the City show that corner sight distance was considered by the engineer who approved them and that there were no sightlines plotted on any of the plans for traffic entering Bolz Ranch Road from Sawgrass Drive, "to show that no obstructions exist that would limit the available sight distance, and to ensure that the minimum sight distance criteria is met by the design."
Dunlap disagreed with Fisher's conclusions regarding the appropriate minimum sight distance and opined that the available sight distance at the intersection was well below industry standards. He concluded that the accident was the result of a dangerous condition created by the restricted sight distance for drivers at the stop sign on Sawgrass Drive, caused by the iron fence and the curve of Bolz Ranch Road. The right turn lane, which was more than 300 feet shorter than allowed parameters, was a secondary cause, because it "contributed to the lack of available sight distance and it also helped to obscure the presence of each involved party to the other." Dunlap noted that at the time of the accident, the truck driving in front of plaintiff could not enter the right-turn lane until it was within 150 feet of the intersection. As a result, plaintiff's smaller vehicle was likely obscured from view behind the larger, turning vehicle until it was dangerously close to the intersection.
In his response to the City's separate statement, plaintiff did not dispute that Padilla reviewed and approved the 2005 signage and striping plan and that he had the authority to do so. Plaintiff added that he was not contending "that the signage and striping on the roadway caused his injuries."
C. Reply, sur-reply, and response
In its reply, the City noted plaintiff's contention that the alleged dangerous condition was not due to signage and striping, but rather the configuration of the roadway. Thus, the City argued that it was entitled to design immunity because it "demonstrated there is an approved design for the configuration of the roadway/accident location."' The City also reiterated that the design was reasonable, citing to the Padilla and Fisher declarations it had filed with its moving papers. The City did not reference the 2002 or 2003 plans.
Plaintiff filed a sur-reply, purporting to "address new arguments raised in defendant's reply." He claimed that the City argued for the first time in its reply that the 2005 signage and striping plan "included approval for the design of the roadway in its entirety—including line-of-sight." The sur-reply attached as an exhibit excerpts from Padilla's deposition, in which Padilla testified that he had approved the signage and striping plan in 2005 after the road was widened and the intersection was built. Padilla also acknowledged that at the time, he only had the authority to approve the plan for signage and striping, not the entire design plan. Padilla testified that the street improvement plans in 2003 and 2004 were likely approved by Michael Mischel, the City Engineer at the time.
At a hearing on May 10, 2018, plaintiff's counsel noted he intended to move ex parte, presumably to ask the court to consider the sur-reply. Instead, plaintiff's counsel informed the court that the parties had reached an agreement that plaintiff's sur-reply could be deemed filed and in exchange, the city "could respond to my sur-reply with two pages of argument and whatever evidence the city felt appropriate to respond to the evidence in the plaintiff's sur-reply and then we would reset this for hearing." The court accepted the stipulation and continued the hearing on the summary judgment motion.
The City filed its response to plaintiff's sur-reply, pursuant to the stipulation. The City argued that the 2005 signage and striping plan "incorporate[d] the approval" of the configuration of the roadway from earlier plans. Additionally, the City contended that the 2002 and 2003 plans supported design immunity because plaintiff had conceded the applicability of those plans by including them in its opposition, "all of which included the curved roadway and the wrought iron fence that allegedly created the line of sight issues." The City also included three new declarations discussing the 2002 and 2003 plans. Padilla provided a supplemental declaration stating that the 2002 and 2003 plans were approved by Mischel as the City Engineer and he had the discretionary authority to approve the plans at that time. Amilcar Naef submitted a declaration stating that he was an Assistant Engineer for the City in 2003, when he reviewed the revisions to the 2002 plan allowing the placement of the iron fence. Naef stated that he reviewed the plans with Mischel, who "gave me approval and authority to sign off on the proposed revisions, which I did." Finally, Fisher submitted a supplemental declaration stating that he had reviewed the 2002 and 2003 plans and opining that the design features shown were reasonable.
Plaintiff filed an ex parte application to strike the new evidence filed in support of the City's response to the sur-reply. At the hearing, plaintiff's counsel argued that plaintiff had "a due process right to know which matters [he] need[s] to respond to in order to fairly oppose" summary judgment. He therefore requested a ruling from the court as to whether "this evidence would actually be considered or not" so that plaintiff could be prepared to respond to it if needed. He argued that the City had never alleged that the earlier plans conferred design immunity or that they were signed by someone from the city with discretionary authority to approve the plans, and further, that the city had presented three new declarations and an entirely new argument in its response. Defense counsel noted that the plans were not new, as they had been attached to plaintiff's expert's declaration in opposition to summary judgment, but that defendant had submitted "additional declarations" to its response to "authenticate" the plans. Plaintiff's counsel argued that the stipulation had only allowed the City to respond to the evidence in the sur-reply concerning the signage and striping plan. He clarified that plaintiff was not moving to strike the plans themselves, as they had already been included in his opposition papers, but rather the new declarations, which essentially "includes all the evidence they need to try and make these plans fall under design immunity which was not in the brief before."
The court stated it would treat plaintiff's ex parte as an objection, take it under submission, and rule on it along with the summary judgment motion. Plaintiff also requested that if the court intended to consider the new evidence, plaintiff be allowed an opportunity to conduct further discovery, including deposing Mischel.
D. Trial court's ruling
At the hearing on the motion for summary judgment, the court indicated its tentative decision to find both sign and design immunity for the City. Plaintiff's counsel argued that the City had framed its motion, as reflected in the separate statement, to contend only that the 2005 signage and striping plan conferred design immunity, which it did not. In response, counsel for the City admitted his "error" in submitting only the signage and striping plan with the motion. He told the court he "wasn't aware until after the motion was filed that [the signage and striping plan was] approved after the roadway was constructed"; however, once plaintiff included the earlier plans with his opposition, he "didn't think it was an issue." He also noted that plaintiff agreed to allow the City to produce additional evidence following the sur-reply. Plaintiff's counsel responded that there was "no stipulated approval to augment the issues considered by the court [a]s framed in the separate statement."
The trial court issued its statement of decision on June 26, 2018, granting summary adjudication to the City on the basis of immunity under sections 830.4, 830.8, and 830.6. Because it found the City was immune, the court did not determine whether plaintiff had evidence to establish his claim of a dangerous condition.
Turning to plaintiff's ex parte application to strike the new evidence filed by the City in response to plaintiff's sur-reply, the court found it did not need to rule on the application, as it could "grant summary adjudication based on the undisputed evidence, as well as Plaintiff's admissions and the evidence proffered before the City filed this response." Specifically, the court indicated it could rely on the 2002 and 2003 plans, as they were previously attached to plaintiff's opposition, and that the substance of the declarations of Padilla, Naef, and Fisher "appear[s] to be largely duplicative of the evidence accompanying the City's motion."
Next, the court granted summary adjudication on the issue of sign immunity. The court rejected as "semantics" plaintiff's argument that sign immunity applied only where the accident was caused exclusively by a lack of traffic signs/signals and did not apply to this accident as it was caused by a "blind corner." The court concluded that the "gravamen of Plaintiff's claim is that the City's failure to post a stop light or sign, or a sign warning motorists to slow before approaching the intersection, caused the accident." Because the court interpreted plaintiff's claim as one asserting "that he had no warning about the blind intersection," it found that claim fell "squarely within the purview of signage immunity."
Alternatively, the court found that design immunity applied "to the extent the First Amended Complaint is predicated on alleged flaws in the existing signage and striping plan." However, because plaintiff expressly disclaimed any such contention, we need not discuss this finding.
The court also granted design immunity based on plaintiff's claim that the accident was caused by the configuration of the intersection, specifically the "poor lines of sight and the blind corner." The court concluded the City had met all three elements to establish design immunity. Citing plaintiff's allegations in his first amended complaint, the court found it was undisputed that the first element of causation was met—as plaintiff's "theory of the case is that the accident was caused by the design of the roadway." Second, the court found the City had established discretionary approval of the plan or design prior to construction. For this element, the court relied on the 2002 and 2003 plans attached to plaintiff's expert's declaration, finding that those improvement plans had been prepared by engineering firms and approved by City Engineer Mischel, as "persuasive evidence of prior approval." The court rejected plaintiff's argument that the City had failed to present evidence that Mischel was authorized to approve the plans, citing to a statement by Padilla in his declaration that the City Engineer was authorized to give discretionary approval to plans and designs for street construction and improvements, as well as to the Palmdale Municipal Code section conferring such authority on the City Engineer.
As we discuss further below, immunity under section 830.6 requires proof of the following three elements: "'(1) [a] causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; [and] (3) substantial evidence supporting the reasonableness of the design.'" (Higgins v. State of California (1997) 54 Cal.App.4th 177, 185 (Higgins), abrogated on another point in Cornette v. Department of Transportation (2001) 26 Cal.4th 63.)
The court also rejected what it described as plaintiff's argument that the court could not consider the 2002 or 2003 plans in ruling on the motion, because the plans "were not part of the City's statement of undisputed facts or exhibits in support thereof." The court noted that plaintiff could not proffer the exhibits "selectively only for the content that supports his position" and concluded it could consider exhibits submitted by an opposing party in granting summary judgment. Further, it found there was "no dispute concerning the authenticity of [the plans], as both sides proffer these documents."
The court also disagreed with plaintiff that the lack of line of sight measurements in the plans defeated immunity. The court concluded that the "issue is whether the person or entity approving the plan knew about the allegedly dangerous feature when the plan was approved." The court found that the plans were sufficiently explicit, as they "show the curvature of Bolz Ranch Road," "where Bolz Ranch Road intersects with Sawgrass Drive," and "the sharp corner created by the right turn lane." Specifically, "the plans show that a motorist driving west on Bolz Ranch Road would not be able to see Sawgrass Drive or much of the intersection until negotiating the curve and passing the sharp right corner. . . . In other words, the visibility issues are noted on the plans, even if they do not contain express line-of-sight measurements."
With respect to the third element of design immunity, the court found there was substantial evidence supporting the reasonableness of the plan or design of the intersection. The court cited the plans themselves, as well as the initial declaration from Fisher opining that there was adequate stopping distance on Bolz Ranch Road and that there were no deficiencies in the design, operation, or maintenance of the road. The court also noted the evidence that there were only four documented accidents at the intersection during the past approximately 13 years.
Accordingly, the court entered judgment for defendant. Plaintiff timely appealed.
DISCUSSION
Plaintiff contends the trial court erred in granting summary adjudication for the City on the grounds of design and sign immunity. We agree.
I. Standard of Review
We review the trial court's summary judgment ruling de novo. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69).) "'In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [plaintiff's] evidentiary submission while strictly scrutinizing [the defendant's] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor.'" (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100.)
A defendant moving for summary judgment must make a prima facie showing that there are no triable issues of fact in order to meet its initial burden of production. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861; see also Code Civ. Proc. § 437c, subd. (c).) "[A] defendant moving for summary judgment [must] present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Id. at p. 854, fn. omitted.) Once the defendant has met that burden, the burden shifts to the plaintiff to make a prima facie showing that a triable issue of material fact exists. (Id. at p. 850.) "The 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).)
II. Design Immunity
Plaintiff contends the trial court should not have considered any of the new evidence proffered by the City in its response to the sur-reply and, in any event, the City failed to meet its prima facie burden to establish the elements of design immunity.
A. Legal standards
"A public entity may be liable for negligently creating an injury-producing dangerous condition of its property or for failing to remedy a dangerous condition despite having had notice and sufficient time to protect against it. (§ 835, subd. (a).)" (Wyckoff v. State (2001) 90 Cal.App.4th 45, 51.) However, there is no liability "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, . . . 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 (b) a reasonable legislative body or other body or employee could have approved the plan or design." (§ 830.6.)
"The rationale behind design immunity 'is to prevent a jury from simply reweighing the same factors considered by the governmental entity which approved the design.' [Citation.] '"[T]o permit reexamination in tort litigation of particular discretionary decisions where reasonable [persons] may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested."'" (Cameron v. State of California (1972) 7 Cal.3d 318, 326 (Cameron).)
A public entity claiming design immunity must plead and prove the following three essential elements, "'(1) [a] causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; [and] (3) substantial evidence supporting the reasonableness of the design.'" (Higgins, supra, 54 Cal.App.4th at p. 185.)
"Design immunity is an affirmative defense often raised on motion for summary judgment or nonsuit, enabling the trial court to find the defense established as a matter of law. [Citation.] The first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed. [Citation.] The third element, substantial evidence of reasonableness, requires only substantial evidence, that is, evidence of solid value which reasonably inspires confidence." (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939-940 (Grenier).) "We are not concerned with whether the evidence of reasonableness is undisputed; the statute provides immunity when there is substantial evidence of reasonableness, even if contradicted. (Higgins, supra, 54 Cal.App.4th at p. 186; see also Grenier, supra, 57 Cal.App.4th at p. 940.)
B. Analysis
Plaintiff contends the trial court should have denied the motion because the City failed to include any evidence or argument about the 2002 and 2003 plans in its moving papers or separate statement. In fact, defense counsel acknowledged the issue, noting that he did not realize until after the motion was filed that the 2005 plan was approved after the roadway was constructed, but he thought it would not be a problem because plaintiff had submitted the 2002 and 2003 plans. It is undisputed that the roadway design elements plaintiff alleges caused the dangerous condition—the curve of the road, the fence, and the right turn lane—were in place prior to 2005, when Padilla approved the signage and striping plan. As such, the 2005 plan—the only plan submitted with the motion—cannot confer immunity over that design. (See Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 69 [plan or design must be approved in advance of construction].) Although ultimately the 2002 and 2003 plans were part of the record, the City did not frame its design immunity defense as based on those plans, as evidenced by their absence from the City's separate statement. Thus, the trial court could have denied summary judgment on that basis alone. (See City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, fn. 4 ["'[t]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist'"]; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315 ["in ruling on a motion for summary judgment, a trial court must consider all the evidence submitted, except the court may ignore evidence not disclosed in moving party's separate statement of undisputed facts"]; see also Code Civ. Proc., § 437c, subd. (b)(1).)
On the other hand, a trial court may exercise its discretion to grant summary judgment upon a ground of law "not explicitly tendered by the moving party," but only if it is based on undisputed material facts and the opposing party is given notice and an opportunity to respond. (See Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 62 (Juge).) In considering the City's new claim in its response to the sur-reply that it had design immunity based on the 2002 and 2003 plans, the trial court stated that it considered the plans themselves, but not the additional declarations submitted by the City. We find the 2002 and 2003 plans do not establish the elements of the City's design immunity defense.
We note that although plaintiff had notice of the plans, as his expert reviewed and discussed them in support of his opposition to summary judgment, he did not have notice that the City intended to rely on them to establish immunity. That issue is moot, however, as we find that even considering the plans, as the trial court did, there was insufficient evidence for the City to meet its burden.
The first element, a causal relationship between the plan and the accident, requires proof that the alleged design defect was responsible for the accident, as opposed to some other cause. (Grenier, supra, 57 Cal.App.4th at p. 940.) Design immunity does not immunize decisions that were not made. (Cameron, supra, 7 Cal.3d at p. 326.) Thus, for design immunity to apply, the injury-producing feature must have been a part of the plan approved by the governmental entity. (Higgins, supra, 54 Cal.App.4th at p. 185.)
Here, the parties dispute whether a plan must include line-of-sight plotting in order to qualify for immunity based on a line-of-sight issue. The City contends it does not, as line-of-sight is not a physical feature to be constructed or improved, but the result of those features. Regardless, plaintiff also argues that several of the physical features of the road that caused his accident were not included in the 2002 or 2003 plans. Plaintiff cites to Cameron, supra, 7 Cal.3d at p. 326, where the superelevation around a curve constituted the dangerous condition causing the plaintiffs to lose control of their car. The plans presented by the state showed many aspects of the roadway, but there was no evidence "the superelevation which was actually constructed on the curve ... was the result of or conformed to a design approved by the public entity vested with discretionary authority." (Id. at p. 326.) The court therefore concluded that the state had failed to prove causation as to the dangerous condition that caused the plaintiffs' accident. (Ibid.)
Here, the evidence suggests that the curve of Bolz Ranch Road and its intersection with Sawgrass Drive were already in existence at the time of these improvement plans. Thus, there was no evidence admitted of the design of these features or their approval. The right turn lane is also not apparent from the 2002 or 2003 plans, although it was undisputed that it was added during this time.
The trial court found that the first element had been satisfied because plaintiff alleged in his first amended complaint that the accident was caused by the design of the intersection. The first amended complaint may define the scope of plaintiff's dangerous condition claim, such that plaintiff cannot now contend the accident was not design related. (See Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550.) But the inquiry does not end there. Where, as here, plaintiff claims that specific elements of the design of roadway caused the dangerous condition that resulted in his injury, those injury-producing elements must have been part of the plan that was approved. (See Cameron, supra, 7 Cal.3d at p. 326; Higgins, supra, 54 Cal.App.4th at p. 185.) The City did not introduce evidence of plans showing the design of the curve of Bolz Ranch Road or the right turn lane. It therefore failed to establish causation.
As we have discussed, the City has not established that the 2002, 2003, or 2005 plans showed the injury-producing features of the intersection and were approved prior to the construction of those features. As such, the City cannot establish the second element of discretionary approval of the appropriate plans. We note, however, that we disagree with plaintiff's contention that the City was required to show that the approving party made certain findings prior to approval in order to establish this element. (See Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 947-948 [rejecting argument that the city was required to prove "deliberative process" for discretionary approval]; Grenier, supra, 57 Cal.App.4th at p. 940 ["A detailed plan, drawn up by a competent engineering firm, and approved by a city engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval."].)
We next turn to the third element of design immunity, substantial evidence of reasonableness of design, which does not require undisputed evidence. "[A]s long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity. The statute does not require that property be perfectly designed, only that it be given a design which is reasonable under the circumstances." (Ramirez v. City of Redondo Beach, supra, 192 Cal.App.3d at p. 525.) "Typically, 'any substantial evidence' consists of an expert opinion as to the reasonableness of the design, or evidence of relevant design standards." (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1267.) That a plaintiff's expert may disagree does not create a triable issue of fact. (Higgins, supra, 54 Cal.App.4th at p. 186.)
For example, in Grenier, supra, 57 Cal.App.4th at p. 936, 941, the third element was met where the defendant relied on deposition testimony from the city engineer that he believed the plans were reasonable and adequate and approved them, and that the street was approved in conformity with the plans, as well as expert testimony that the design was reasonable. Similarly, in Higgins, supra, 54 Cal.App.4th at p. 187, the state's expert testified that the design had been approved by multiple engineers and that the project conformed with the plan; the court found he "thus laid a foundation for his opinion the design could reasonably have been approved." Here, by contrast, there was no testimony that the construction conformed with the 2002 or 2003 plans. Further, the original declaration from Fisher submitted in support of the City's motion does not discuss the 2002 and 2003 plans at all, let alone opine that their design was reasonable. The trial court cited Fisher's opinions regarding the intersection based on his inspection and testing, but his conclusion that the intersection was safe and reasonably designed cannot be transferred to an opinion about plans he did not claim to have reviewed.
The City contends the evidence the trial court considered was sufficient to establish design immunity. However, the City also argues that the additional evidence it offered should have been considered based on the parties' stipulation that additional evidence could be submitted and that plaintiff should not be allowed relief from the burdens of his bargain. We are not persuaded that by allowing the City to respond to plaintiff's sur-reply, plaintiff waived any objection to the City shifting the factual basis for its immunity argument. In fact, plaintiff's counsel expressly objected that "there is no stipulated approval to augment the issues considered by the court [as] framed in the separate statement." The City's motion was based entirely on the 2005 signage and striping plan, and it attempted to use its response to the sur-reply to address entirely different sets of plans and establish all the elements of immunity with respect to those plans. The stipulation did not relieve the City of its prima facie burden of proof on summary judgment. It was the City's burden to establish the elements of a design immunity defense based on undisputed evidence. The City cannot meet this burden by relying on evidence presented for the first time in a response to a sur-reply. Rather, due process requires that a plaintiff be informed what issues he or she must meet in order to oppose summary judgment. "Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail." (See, e.g., San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.)
Plaintiff also objects that the City included new excerpts from Fisher's declaration in its respondent's appendix on appeal that were never included in the record on summary judgment before the trial court. We have not considered this evidence. --------
In sum, the City has failed to provide undisputed evidence to establish design immunity under section 830.6.
III. Sign Immunity
Plaintiff also contends the trial court erred in granting sign immunity under sections 830.4 and 830.8, because the alleged failure to provide signs or markings was not the sole basis for the dangerous condition.
Section 830.4 "provides a shield against liability only in those situations where the alleged dangerous condition exists solely as a result of the public entity's failure to provide a regulatory traffic device or street marking. If a traffic intersection is dangerous for reasons other than the failure to provide regulatory signals or street markings, the statute provides no immunity." (Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1534-1535 [no immunity where plaintiff claimed dangerous condition was due not only to the absence of regulatory traffic devices, but also sight restrictions from pillars and an overhead freeway].) "If an intersection is dangerous because of the failure to provide warning or regulatory signs and also because of the 'conjunction of other factors,' section 830.4 is no bar to liability." (Id. at pp. 1538-1539, quoting Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 174.)
Here, plaintiff alleged, and presented evidence suggesting, that the dangerous condition of the intersection was caused by factors other than a lack of signage, including visibility issues created by the combination of the curve of the road, the fence, and the short right turn lane. Indeed, plaintiff's expert focused heavily on those three factors. The trial court's conclusion that the gravamen of plaintiff's claim was that his accident was caused by the City's failure to post adequate traffic or warning signals is not supported by the record. Indeed, the City does not even address this argument on appeal. As such, we conclude that the City failed to demonstrate the right to immunity under sections 830.4 or 830.8 as a matter of law.
DISPOSITION
We reverse and remand the order granting summary adjudication to the City. Plaintiff is awarded his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: WILLHITE, ACTING P.J. CURREY, J.