Opinion
B225247
12-05-2011
JOSE M. TORRES, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.
Carpenter, Zuckerman & Rowley and John C. Carpenter for Plaintiff and Appellant. Collins, Collins, Muir & Steward, Tomas A. Guterres, Christian E. Foy Nagy and Douglas Fee for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC392054)
APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth Allen White, Judge. Affirmed.
Carpenter, Zuckerman & Rowley and John C. Carpenter for Plaintiff and Appellant.
Collins, Collins, Muir & Steward, Tomas A. Guterres, Christian E. Foy Nagy and Douglas Fee for Defendant and Respondent.
While attempting to cross Santa Fe Avenue near the uncontrolled intersection with Poplar Place in the County of Los Angeles, plaintiff and appellant Jose M. Torres was seriously injured when he was struck by a vehicle driven by Guillermo Gallegos. Torres filed a personal injury action against Gallegos (who is not a party to this appeal) and the County. Torres alleged Gallegos was negligent by driving in excess of the speed limit and without using his headlights during conditions of darkness. With regard to the County, Torres alleged two causes of action: (1) negligence in its control and design of the intersection and in creating and failing to warn against a "concealed trap," whereby drivers and pedestrians had insufficient time to see each other due to a curve in the road and lack of adequate warning signs, markings, or traffic control devices; and (2) for creating a dangerous condition based on similar allegations as to the lack of pedestrian safety design protections.
The trial court granted the County's motion for summary judgment on the affirmative defense of governmental immunity, which precludes recovery for a dangerous condition when premised on the failure to provide regulatory traffic control devices or distinctive roadway markings, and when the injury was caused by a reasonably approved plan or design of a construction to public property. Torres appeals from that judgment, arguing the court erred in granting summary judgment.
We affirm. In asserting the trial court failed to recognize evidence that served to create disputed issues of material facts as to the County's immunity defense, Torres consistently seeks to rely on evidence the court ruled inadmissible. As we explain, Torres forfeited his objection to those evidentiary rulings by failing to present specific challenges to those rulings, supported by reasoned argument and authority. Stripped of his improper reliance on evidence found inadmissible below, we hold the County carried its burden of establishing its immunity for the alleged dangerous condition.
FACTUAL AND PROCEDURAL BACKGROUND
The Accident
On March 26, 2007, at approximately 7:30 p.m., Torres was on foot, crossing Santa Fe Avenue from the east curb, just south of the intersection with Poplar Place, which intersects the northbound lane of Santa Fe Avenue from an easterly direction at a 40 degree angle from the east in an inverted "Y." (Poplar Place ends at Santa Fe Avenue; it does not intersect with Santa Fe Avenue on the southbound side.) Santa Fe Avenue is a two-lane road, divided by double yellow lines with five-foot sidewalks on either side. It runs north/south, but curves in an east/west direction from the intersection with Independence Avenue, the block south of Poplar Place. Parking is permitted on both sides of Santa Fe Avenue, except during morning and evening peak hours. The speed limit is 25 miles per hour. The intersection of Poplar Place and Santa Fe Avenue is uncontrolled and has no marked crosswalk.
According to the police officer who responded to the accident, the roadway conditions were dry, without any unusual conditions. Gallegos was driving northbound on Santa Fe Avenue. Gallegos told the officer that he did not see Torres in the roadway as he drove toward Poplar Place. When Gallegos "suddenly saw" Torres, he applied his brakes, but was unable to stop in time. Gallegos's vehicle struck Torres, who was in the middle of the northbound lane, causing severe injuries to Torres. The officer concluded that Torres was at fault, having failed to yield the right-of-way to a vehicle while crossing outside a marked or unmarked crosswalk in violation of Vehicle Code section 21954, subdivision (a).
The Complaint
The first cause of action against the County alleged negligence for creating and failing to warn against a "non-obvious and concealed trap" based on (1) the failure to enforce the speed limit; (2) the failure to install additional speed limit signs, "watch for pedestrian" signs, intersection warning signs, intersection lining/delineation, speed bumps, "do not block intersection" signs, speed limit signs, painted crosswalk markings and "no parking" signs; (3) the failure to maintain safe sight distances for traffic and pedestrians; and (4) the failure to reduce the speed limit.
The second cause of action alleged the accident site was a "dangerous condition on public property" for a variety of reasons to the effect that the intersection was dangerous and defectively planned, designed, and constructed. To the extent the design was approved, the approving authorities were incompetent and the approval was unreasonable, an abuse of discretion, and reckless. Further, the accident site was dangerous, improperly and defectively maintained, managed, inspected, repaired, modified, reviewed, and evaluated—all in violation of applicable engineering standards. The speed limit and traffic volume were in excess of reasonable standards. In addition, the same failures enumerated in the negligence cause of action were alleged to have created a non-obvious and concealed trap against which the County failed to warn against. The lack of signage and related markings created a "concealed trap" with regard to inadequate sight distances for drivers and pedestrians.
The Summary Judgment Motion
The County moved for summary judgment on the ground that it was immune from liability for Torres's claims. Under Government Code sections 830.4 and 830.8, the lack of traffic control devices, warning signs and markings does not create a "dangerous condition" for purposes of imposing liability on a public entity. Additionally, the County was entitled to design immunity pursuant to Government Code section 830.6 because the accident was allegedly caused by the County's plan or design, which was approved through the exercise of discretionary authority prior to construction, and there was substantial evidence that the design or plan was reasonable. Finally, to the extent Torres premised liability on the failure to enforce the speed limit, the County was immune under Government Code section 818.2.
Government Code section 830.4 provides: "A condition is not a dangerous condition within the meaning of this chapter merely because of the 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 Section 21460 of the Vehicle Code." Government Code section 830.8 provides: "[A] public entity . . . is [not] liable . . . for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity . . . from liability 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."
Government Code section 818.2 provides: "A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law."
As evidentiary support, the County relied primarily on three declarations to demonstrate that there was no dangerous condition at the accident site and the County had duly approved the design for the roadway, including its lack of pedestrian safety markings and other alleged deficiencies, where the accident took place.
First, attached to the declaration of Pete A. Flores, a civil engineer serving as assistant section head of the Mapping and Property Management Division of the Los Angeles County Department of Public Works ("Department"), was a copy of a 1976 memorandum from the road commissioner to Supervisor Kenneth Hahn, assessing whether it would be appropriate to install traffic signals on a stretch of Santa Fe Avenue including Poplar Place. "None of the nationally accepted criteria for installation of traffic signals are satisfied at this time at any of these locations. . . . Installation of traffic signals at any location along this portion of Santa Fe Avenue is not recommended."
The second declaration was provided by Guita Sheikholeslami, a principal engineer/assistant division head for the Department's Traffic and Lighting Division, the government entity responsible to responding to requests for traffic control devices in the area of Los Angeles County where the accident occurred. According to Sheikholeslami, it was understood within the Department that implementation of traffic control devices was not always in the best interest of pedestrian safety—sometimes installation of such devices increased the frequency of pedestrian accidents. The Department would therefore only mark a crosswalk or deploy any other pedestrian related traffic control devices "if there were very clear factors indicated in an associated engineering study."
In late 2000, the Department began a project to resurface the pavement on Santa Fe Avenue between Walnut Street and Independence Avenue, which included the Poplar Place intersection. As part of that project, the Department reviewed the existing uncontrolled marked crosswalks on Santa Fe Avenue and concluded they should be restored during the resurfacing, but using "ladder-type" markings. The Department found no need to install additional crosswalks as part of the project.
In July 2001, in conjunction with the resurfacing project, the Department conducted a "comprehensive study" of Santa Fe Avenue between Florence Avenue and Independence Avenue, in response to a request by Supervisor Gloria Molina's office to evaluate pedestrian safety concerns as to speeding incidents and the need for additional pedestrian-related traffic control devices. That study included a "collision analysis" to determine whether there was a historic pattern of collisions that required further analysis of pedestrian safety. The Department's engineering staff concluded that no traffic control devices were warranted and there was no need for more studies. The project plans were approved on March 11, 2002, by the assistant deputy director of the Department.
The Department also studied the area of Santa Fe Avenue encompassing the accident site pursuant to a community-initiated project to reconfigure the intersection of Santa Fe Avenue and Independence Avenue—one block south of the accident site. In 2000, the Department's design considerations included a study as to "the prevailing speed on Santa Fe Avenue and additional pedestrian-related traffic control devices between the intersection of Poplar Place and Independence Avenue along Santa Fe Avenue." "Traffic engineering staff concluded that the area did not warrant the installation of any additional traffic control devices such as a traffic signal."
In 2002, as part of the reconfiguration project, the Department further considered the need to deploy pedestrian controls and devices. In August, Department personnel met concerning the submission of the proposed reconfiguration design. The residents "loved the idea," but voiced concerns regarding pedestrian safety: "Residents requested a smart crosswalk on Santa Fe Av[enue] somewhere between Independence Av[enue] and Poplar Pl[ace]. It was reported that there is no place . . . to cross Santa Fe Av[enue] within this location without the fear to get hit." The Department conducted a study at that location to assess the need to install a smart crosswalk — a device consisting of a flashing beacon warning system. The study included a visit to the site to survey the surrounding area and collect data, including a count of pedestrian crossings at peak hours. As the data did not support the Department's criteria for conducting a more in-depth study of the need for the device, "traffic engineering staff concluded that there was insufficient pedestrian traffic to warrant any further traffic control devices." The reconfiguration project plans were approved by the Department's division head on April 1, 2003.
In 2006, six months after the improvements were completed, the Department's traffic engineering staff conducted a study "to reevaluate the intersection of Santa Fe Avenue and Independence Avenue to determine if it warranted further mitigations or controls." In accordance with the Department's guidelines and practices, the study "analyzed various data including pedestrian volume, vehicular volume, sight distances, visibility, and collision histories." The study concluded that those factors "did not warrant further traffic mitigations or controls."
Third, Weston Pringle, P.E., a licensed civil and traffic engineer offered expert testimony. Based on his observations, document review, and expertise, he opined that "installation of a marked crosswalk in the two-block segment of Santa Fe Avenue between Independence Avenue and Cass Place, which included the intersection with Poplar Place, would not be in the interest of pedestrian safety." Having considered the volume of vehicles and pedestrians, as well as vehicle speeds and the roadway characteristics, Pringle opined that the installation of such a mid-block marked crosswalk would tend to give pedestrians a false sense of security, while motorists would not expect to find a crosswalk in that location.
In addition, Pringle observed "no concealed obstructions to visibility for a motorist traveling northbound on Santa Fe Avenue approaching the intersection with Poplar Place as to any pedestrians crossing Santa Fe Avenue from east to west near the Poplar Place intersection." He did not find any such concealed visibility obstructions for pedestrians as to northbound vehicles. Pringle's review of the accident history showed that in the 10 years preceding the Torres accident, there were two reported pedestrian accidents in the two-block section of Santa Fe Avenue comprising the blocks above and below the intersection with Poplar Place — on December 31, 2002, a westbound pedestrian was struck by a southbound motorist 168 feet south of Poplar Place; on February 17, 2007, an eastbound pedestrian was struck by a northbound motorist 30 feet south of Poplar Place. The expert opined that the Department would not have had enough time to review and analyze the information from the 2007 accident, occurring five weeks before the Torres accident, so as to provide it with reasonable notice of the accident.
Torres's Opposition
In order to prove the existence of a dangerous condition at the accident site, Torres relied primarily on the declaration of his expert, Harry J. Krueper, Jr., P.E., a licensed civil and traffic engineer. Krueper declared that his review of accident history data showed that within 300 feet of the accident site, there were 35 accidents, "more than four times the Countywide expected average and well outside the appropriate range for traffic collisions." The expert's "radar spot speed check results" determined that 72.8 percent of the vehicles travelled at or exceeded the posted 35 miles per hour speed limit.
Krueper also opined that the illumination level in the vicinity of the accident site was substandard and malfunctioning, which tended to conceal the presence of the intersection and pedestrians from approaching motorists — thereby creating a "dangerous environment for pedestrians and motorists" even when "exercising due care." That dangerous condition was "concealed from a pedestrian." The dangerous condition was exacerbated by "minimal sight distances," unrestricted parking, "inadequate, substandard and poorly maintained lighting" that "caused both the pedestrian and the motorist to be unaware of each other's presence until he or she is already in a position where they are in danger and it is too late."
Central to Krueper's expert opinion was the existence of a "shadow zone" caused by the curvature of Santa Fe Avenue just south of the accident site that "makes cars invisible for up to [seven] seconds as they enter and pass through the hidden stretch of roadway." Persons "standing at the curb cannot see vehicles more than 150 feet away and motorists are unable to see a pedestrian standing on the curb until they are 50 feet or less away" — distances that do not provide motorists and pedestrians sufficient time to avoid each other. "[T]he presence of the 'shadow zone' is not reasonably apparent to, or reasonably anticipated by, a pedestrian exercising due care." The County provided drivers with "no form or warning about the likelihood of pedestrian crossings at the subject intersection . . . ." The "shadow zone" was a dangerous condition, exacerbated by the substandard and improperly maintained lighting and lack of parking restrictions, which the County could not have reasonably approved.
In addition, Attorney Robert Balbuena submitted a declaration in which he stated that he interviewed three residents who were knowledgeable about whether the street light at the accident site was operable. Balbuena prepared declarations from each resident, which were "drafted in English, with an accurate Spanish translation." In those declarations, the residents stated that they lived on Santa Fe Avenue at the Poplar Place intersection, and the street light "meant to illuminate the intersection . . . has not been working for at least the last [three] years" prior to August or September 2009.
The County's Evidentiary Objections
The County filed separate written objections to the Krueper and Balbuena declarations. The former comprised 56 specific objections, quoting the objectionable portions of the Krueper declaration and identifying them by page and line number, setting forth legal objections accompanied by Evidence Code citations. The grounds for objection included lack of foundation, improper expert opinion, relevance, and vagueness. The trial court overruled six of the objections and sustained the others. As discussed more fully below, the court sustained objections to nearly all of the portions of the Krueper declaration summarized above. Similarly, with regard to the Balbuena declaration, the court sustained all but one of the County's 19 specific objections, ruling inadmissible the testimony as to the street lighting near the accident site.
The Trial Court Ruling
The trial court found the County established the three elements of the design immunity defense. First, there was a causal relationship between the plan or design and the accident because the gravamen of Torres's case, as set forth in his complaint, was that he was injured due to a dangerous condition or concealed trap at the accident site. That condition existed because of a lack of adequate traffic controls, speed and pedestrian warnings, and other signage and markings to improve pedestrian safety at the accident site. Second, there was no triable issue of material fact as to the County's discretionary approval of the various plans for the roadway, all of which elected not to include such traffic controls, based on the County's evidence of signed approvals for those design plans. Finally, as to the reasonableness of those approvals, the court found substantial evidence based on the studies and recommendations that culminated in the various plan approvals. In addition, Government Code sections 830.4 and 830.8 combined to immunize the County for the failure to provide regulatory traffic control signals and other such markings and devices.
There was no concealed dangerous condition because the County established that the sight lines were adequate for Torres and Gallegos, and the lack of such traffic markings, devices, and controls would have been apparent to Torres. The trial court ruled inadmissible the contrary opinions proffered in the Krueper declaration. Further, to the extent Torres's injuries were caused by third party negligence — Gallegos's alleged speeding or failure to use headlights — it would not support the existence of a dangerous condition. (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131 ["If . . . it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not 'dangerous' within the meaning of section 830, subdivision (a)."].)
The trial court found the County had no duty to provide street lighting and, even assuming Torres's injury was caused by Gallegos's violation of the speed limit, Government Code section 818.2 immunized the County from liability arising out of the failure to enforce any law.
DISCUSSION
Standard of Review and Evidentiary Rulings
The County, as a defendant moving for summary judgment, was entitled to summary judgment if it established a complete defense to Torres's cause of action, or showed that one or more elements of the cause of action could not be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).) "The moving party bears the burden of persuasion that there is no triable issue of material fact. Additionally, the moving party bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party to demonstrate the existence of a triable issue of material fact." (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1250, citing Aguilar, supra, at pp. 850-851.)
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) "The trial court's stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale." (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
As we have mentioned, Torres relies heavily on evidence in the Krueper and Balbuena declarations that the trial court ruled inadmissible. The County's evidentiary objections were sustained as to critical aspects of those declarations, including Krueper's opinions concerning the accident history near the accident site and his opinion as to a dangerous condition at the Santa Fe Avenue and Poplar Place intersection, based on inadequate sight distances between motorists and pedestrians, as exacerbated by inadequate lighting. That is, the court ruled inadmissible Krueper's testimony as to the roadway "shadow zone" that he opined was a concealed hazard created and maintained by the County and which required warnings and other markings and traffic devices to protect pedestrians and motorists. Also ruled inadmissible was the testimony by Santa Fe Avenue residents as to the lack of illumination at the Poplar Place intersection. In seeking to rely on such testimony, Torres overlooks an essential aspect of the standard of review—that our de novo review excludes from consideration all such evidence.
"It is appellant's 'burden on appeal to affirmatively challenge the trial court's evidentiary ruling, and demonstrate the court's error.' (Roe v. McDonald's Corp. (2005) 129 Cal.App.4th 1107, 1114.)" (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074 (Salas); Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1194, 1197-1198 (Villanueva).) In order to raise a proper challenge to the lower court's evidentiary rulings, Torres was required to "demonstrate how each ruling was erroneous" and "support such challenge with reasoned argument and citations to authority." (Salas, supra, at p. 1074.)
Torres has failed to establish evidentiary error. His only attempt to challenge the evidentiary rulings is found in the final section of his opening brief in which he makes the cursory assertion that in sustaining "numerous objections" to the Krueper declaration, the trial court committed "a plain abuse of discretion." As support, Torres merely cites the title page of the County's evidentiary objections and the trial court's minute order as to its rulings thereon, asserting Krueper is a well-respected civil and traffic engineer, whose "qualifications are set forth at length in his declaration." Torres concludes his brief by asserting in conclusory fashion that the trial court abused its discretion sustaining each of the County's objections to the Krueper and Balbuena declarations. Also without citation to any authority, Torres complains that the trial court failed to state the grounds for its rulings as to the County's "laundry list of objections and despite the fact that the content of the declaration appears to be appropriate." The record shows that the County's objections were specific and narrowly tailored, and the trial court made specific rulings, overruling some and granting others on the grounds set forth in the objections.
Under such circumstances, Torres's forfeiture is clear. The recent decision in Salas is directly on point: "[P]laintiffs failed to carry their burden to affirmatively show error in the trial court's rulings on the evidentiary objections. The trial court provided various and varying reasons for sustaining 25 separate objections to Douglas's declaration. Plaintiffs make no attempt to demonstrate how each evidentiary ruling was erroneous. They have not specified the evidentiary objections to which their cursory argument is addressed, nor have they discussed the multiple grounds on which each objection was sustained. Simply claiming that Douglas is well qualified and that many factors must be considered in determining a dangerous condition fail to carry the burden to show error. In arguing only generalities, plaintiffs' briefs do not contain 'argument and citations to authority as to why the trial court's evidentiary rulings were wrong.' (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1198.) 'We are not required to search the record to ascertain whether it contains support for [plaintiffs'] contentions.' (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.)" (Salas, supra, 198 Cal.App.4th at p. 1074.)
In his reply brief, Torres argues for the first time—without any attempt to justify his failure to do so in his opening brief—that the trial court abused its discretion pursuant to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255-256 (Nazir). "Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument." (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)
In any event, Nazir is easily distinguished. There, the appellate court held that a trial court's conclusory evidentiary ruling that does not address the individual objections and provides no meaningful basis for review is not entitled to deference on appeal. "The court in Nazir . . . merely observed that the trial court's blanket sustaining of all but one of defendants' objections en masse and in a single sentence was 'hardly a ruling' and failed to conform to the requirement that the court expressly rule on individual objections—a failing made all the more egregious because many of the objections stated no grounds at all. Here, in contrast, the court expressly ruled on each objection presented by the parties. Nothing more is necessary. (See generally Cal. Rules of Court, rule 3.1354(c) [proposed order submitted with written objections to evidence in connection with a summary judgment motion "must include places for the court to indicate whether it has sustained or overruled each objection"; no space for explanation of ruling is required].)" (Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 512, fn. 15.)
We therefore do not consider any of the evidence to which the trial court sustained objections. (Guz, supra, 24 Cal.4th at p. 334; Salas, supra, 198 Cal.App.4th at p. 1074; Lyles v. State of California (2007) 153 Cal.App.4th 281, 285, fn. 3; Villanueva, supra, 160 Cal.App.4th at p. 1198.)
Public Entity Immunity
"A public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures. (Gov. Code, § 835, subd. (b); Baldwin v. State of California (1972) 6 Cal.3d 424, 427 (Baldwin).) [¶]However, a public entity may avoid such liability by raising the affirmative defense of design immunity. ([Gov. Code,] § 830.6.) 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." (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66, fn. omitted (Cornette).) "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.)
"'As to what constitutes a dangerous or defective condition no hard-and-fast rule can be laid down, but each case must depend upon its own facts.' (Fackrell v. City of San Diego (1945) 26 Cal.2d 196, 206.) A dangerous condition of public property can come in several forms and may be based on an "amalgam" of factors. (Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 1476.) A dangerous condition of public property may arise from its damaged or deteriorated condition, from "the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use." [Citation.]' (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 149, 132.)" (Salas, supra, 198 Cal.App.4th at p. 1069.) However, Government Code section 830.4 provides: "A condition is not a dangerous condition within the meaning of this chapter merely because of the 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 Section 21460 of the Vehicle Code."
We turn to the parties' showings on the three elements for design immunity. "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. [Citation.] 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. [Citations.]" (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939-940, fns. omitted (Grenier).) "Without question, roadways and roadway construction are improvements to public property which are subject to design immunity." (See Fuller v. Department of Transportation (2001) 89 Cal.App.4th 1109, 1114 (Fuller).)
The first element of design immunity requires proof that the alleged design defect was responsible for the accident, as opposed to some independent cause. (Grenier, supra, 57 Cal.App.4th at p. 940.) "[B]y force of its very terms design immunity is limited to a design-caused accident. Stated otherwise, it does not immunize against liability caused by negligence independent of design, even though independent negligence is only a concurring proximate cause of the accident [citations]." (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 575 (Mozzetti) [no design immunity where flooding was "not attributable solely to the design defect of the Project," but at least partially by poor maintenance and clogging of drainage system]; De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 747-748 [no design immunity where the city failed to show the installation or placement of stop sign at location partially obscured by shrubbery was part of an approved plan or design].)
Here, the essence of Torres's claims both for negligence and for "dangerous condition" is that the nature of the roadway's construction was such that it created a hidden trap whereby pedestrians crossing at Poplar Place would not have sufficient time to avoid northbound traffic on Santa Fe Avenue in the absence of traffic controls, pedestrian protective devices, roadway signage and warnings. To the extent Torres alleged a separate negligence claim against the County, it was based on negligent acts or omissions that created that same dangerous condition or hidden trap. We therefore agree with the trial court that Torres's allegations suffice to assert the requisite causal connection between Torres's injuries and the County's roadway design. (See Fuller, supra, 89 Cal.App.4th at p. 1114.)
Torres argues that, pursuant to the Mozzetti line of authority, he presented substantial evidence of dangerous conditions independent of the roadway design or plan. The argument fails because the evidence on which Torres relies to show such "non-plan" causation was ruled inadmissible by the trial court. The trial court sustained the objections to Krueper's expert testimony that: (1) the "unusual curvature" of Santa Fe Avenue conceals the presence of the intersection and of any pedestrians until a driver is already at or near the intersection; (2) a "'shadow zone' optical illusion" made northbound traffic invisible to pedestrians for a period of time; (3) there was substandard lighting at the intersection; and (4) unrestricted parking "significantly reduces sightlines for both pedestrians and approaching vehicles, and conceals the presence of an intersection." Moreover, there was no substantial evidence that the presence of parked cars contributed to the accident.
Torres relies on Gallegos's deposition testimony in which he estimated there were six vehicles parked to his right side near the accident site. Gallegos, however, did not testify that those vehicles compromised his vision. Nor was there substantial evidence of a causal relationship between parked cars and the accident based on testimony from the County's witnesses to the effect that a pedestrian could be obscured by a parked vehicle, or that the absence of parked vehicles could enhance sightlines.
We therefore turn to the second element. "Discretionary approval simply means approval in advance of construction by the officer exercising discretionary authority." (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 734 (Alvarez), abrogated on another point in Cornette, supra, 26 Cal.4th at pp. 67, 74 & fn. 3; Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 526.) Here, the County's evidence of discretionary approval of the roadway design without any crosswalk markings or other pedestrian safety devices or markings included: (1) the road commissioner 1976 memorandum, concluding that installation of traffic signals on a stretch of Santa Fe Avenue including Poplar Place was not recommended; (2) the Department's July 2001, resurfacing project study in response to a supervisor's request to evaluate pedestrian safety concerns and the need for additional pedestrian-related traffic control devices, concluding that no traffic control devices were warranted; (3) the resurfacing project plans were approved on March 11, 2002, by the Department's assistant deputy director; (4) the Department's 2002 reconfiguration project study to assess the need to install a smart crosswalk near the intersection of Santa Fe Avenue and Poplar Place, concluding that no traffic control devices were needed; (5) the reconfiguration project plans were approved by the Department's division head on April 1, 2003; and (6) the Department's 2006 study "to reevaluate the intersection of Santa Fe Avenue and Independence Avenue to determine if it warranted further mitigations or controls," concluding that such mitigations or controls were not warranted.
Such evidence satisfies the discretionary approval element. As we have held, "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." (Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 89-90, fn. omitted (Anderson).) "Analogously, a detailed plan, drawn up by a registered professional civil engineer, and approved by four district and State officials in the exercise of their discretionary authority is sufficient to establish the prior approval element of design immunity." (Alvarez, supra, 79 Cal.App.4th at p. 734.)
As in Anderson, Torres attempts to take this case outside the reach of design immunity "by characterizing the dangerous condition of the roadway as one which was not comprehended within the plan or design." (Anderson, supra, 65 Cal.App.3d at p. 90.) He argues that there was no evidence that the "curvature" in Santa Fe Avenue was approved prior to the roadway's construction. In so doing, Torres presents an unreasonably narrow interpretation of the plan or design. As we explained in Anderson, our examination of the evidence proffered on summary judgment must be conducted in a manner consistent with the rationale for the design immunity defense, which "is predicated upon the concept of separation of powers—that is, the judicial branch through court or jury should not review the discretionary decisions of legislative or executive bodies, to avoid the danger of 'impolitic interference with the freedom of decisionmaking by those public officials in whom the function of making such decisions has been vested.' (Cameron v. State of California, 7 Cal.3d 318, 326; quoting from 4 Cal. Law Revision Com. Rep. (1963) p. 823; see Van Alstyne, Cal. Government Tort Liability (1964) § 6.32.) Additionally, judicial economy underlies design immunity—forbidding a jury from reweighing the same factors considered by the governmental entity which approved the design. (Baldwin[, supra,]6 Cal.3d [at p.] 432, fn. 7.)" (Anderson, supra, 65 Cal.App.3d at p. 89, fn. omitted.)
From the studies and plans submitted below, it is plain that the resurfacing and reconfiguration plans comprehended the alleged defective design and concealed trap. The Department's studies could not have been undertaken without consideration of the roadway's curvature. Regardless of whether the original construction of the roadway's curvature resulted in a "shadow zone," the resurfacing project and the reconfiguration projects were implemented pursuant to pedestrian safety studies that addressed the precise issue of whether additional safety features were needed—including the very types of devices, signage, and markings Torres alleges were necessary to remedy the supposed dangerous condition or trap. Those studies included consideration of pedestrian and vehicular volume, along with sight distances. Thus, the evidentiary showing was materially indistinguishable to that in Anderson, in which the public entity's plans mentioned signing, which "indicat[ed] inferentially, at least, that other forms of signing had been considered and rejected. Thus to avoid the risk of interfering with a discretionary decision of the planning body, we are not willing to conclude that the absence of warning signs prior to the Lynn Road curve was not an element of the design." (Anderson, supra, 65 Cal.App.3d at p. 90.)
Torres's other arguments fare no better. His assertion that the County's design plans and studies did not address intersection lighting and parking restrictions cannot raise a disputed issue of material fact because—as we have shown—the evidence on which Torres relies to prove such factors contributed to the dangerous condition was ruled inadmissible. Nor does Torres provide any support for his assertion that the plan was not properly approved because it was not signed by the director of public works himself, but rather by an assistant deputy director. Government Code section 830.6 requires approval "by some . . . employee exercising discretionary authority to give such approval." (Gov. Code, § 830.6.) The Department presented testimony that the two plans were duly approved by the Department, and the plans themselves indicate the signatures were authorized and effective. As stated in Alvarez, supra, 79 Cal.App.4th at pages 728-729, "'[a] signature is presumed to be genuine and authorized if it purports to be the signature, affixed in his official capacity, of [¶] . . . [a] public employee of any public entity in the United States.' (Evid. Code, § 1453.) Given this presumption, the signatures of the various Caltrans engineers, affixed in their official capacity as employees of the State, furnishes 'evidence sufficient to sustain a finding' that the writings were what the State claimed them to be. (Evid. Code, § 1400, subd. (a).) Thus, the plans themselves provide evidence that the Project design was given the requisite discretionary approval prior to construction."
From our discussion of the first two elements, it follows that the County satisfied the third element of design immunity, reasonableness of design, which "requires only substantial 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.' [Citation.] Generally, a civil engineer's opinion regarding reasonableness is substantial evidence sufficient to satisfy this element. [Citation.] Approval of the plan by competent professionals can, in and of itself, constitute substantial evidence of reasonableness. [Citation.] That a plaintiffs expert may disagree does not create a triable issue of fact." (Grenier, supra, 57 Cal.App.4th at p. 941.)
There was substantial evidence that the roadway design was reasonable. In connection with the County's resurfacing and reconfiguration projects, the Department studied whether to maintain the existing design of the roadway without implementing additional crosswalk markings or other pedestrian safety devices or markings. Those studies considered the sight-lines at the intersection of Santa Fe Avenue and Poplar Place, along with vehicular and pedestrian traffic, but concluded there was no need for implementing such pedestrian safety markings and devices. The County's engineering expert testified that a marked crosswalk would not further the interest of pedestrian safety. His examination revealed no concealed visibility obstructions for northbound motorists on Santa Fe Avenue or for pedestrians crossing at Poplar Place. Once again, Torres improperly argues the decision was unreasonable based on evidence ruled inadmissible below. The County was therefore entitled to design immunity. (See Grenier, supra, 57 Cal.App.4th at pp. 941-942.)
Torres also asserts, for the first time in his reply brief, that the summary judgment must be reversed because the trial court relied on "hundreds of pages of evidence" submitted by the County in its reply papers below. Our review does not support the argument. While the County did submit new material in its reply papers, the court granted Torres's motion to exclude much of it. To the extent the court overruled Torres's evidentiary objection, it appears that the new material was responsive to material Torres raised for the first time in his opposition papers. In any event, Torres on appeal makes no attempt to identify the evidence he contends was improperly considered, much less show how its admission was prejudicial.
Additional Challenges to Design Immunity
Torres argues that the County cannot invoke design immunity because the County had notice that the accident site was a "concealed trap," but failed to provide any warnings thereof. Once again, his argument fails because there is no admissible evidence to support his claim that a concealed trap existed by virtue of a "shadow zone," unrestricted parking, or insufficient lighting. Nor was there any evidence that the County had notice that such a trap existed.
As Torres points out, despite the County's immunity for a defectively designed roadway, "a second independent ground of liability under subdivision (b) of Government Code section 835 exists for its failure to warn of the dangerous condition if it had actual or constructive notice of such a condition." (Anderson, supra, 65 Cal.App.3d at p. 91.) Additionally, "a public entity is not shielded from liability under subdivision (b) of section 835 for the maintenance of a dangerous condition in its property, if it fails to post signs in circumstances constituting a trap to the motorist." (Id. at p. 93.)
"This 'concealed trap' statute applies to accidents proximately caused when, for example, the public entity fails to post signs warning of a sharp or poorly banked curve ahead on its road or of a hidden intersection behind a promontory [citations], or where a design defect in the roadway causes moisture to freeze and create an icy road surface, a fact known to the public entity but not to unsuspecting motorists [citation], or where road work is being performed on a highway [citation]." (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1197 (Chowdhury).) Torres presented no evidence of anything similar. To the extent he relies on the presence of a dangerous, concealed "shadow zone," he improperly relies on evidence found inadmissible below.
Similarly, the existence of parked cars along Santa Fe Avenue would seem to fall outside the concealed trap exception since their presence would be obvious to pedestrians and drivers alike. And as we have explained, Torres presented no substantial evidence that the presence of parked cars obstructed his view or contributed to the accident. "Appellants do not allege the presence of any hazardous condition that would not be apparent to pedestrians and motorists using the intersection with due care. Apart from the lack of a marked crosswalk, the only physical characteristics appellants take issue with are the bulb-outs.[] The bulb-outs, however, were not hidden from pedestrians or motorists; thus they do not constitute a concealed trap. Accordingly, to the extent the lack of crosswalk markings were a factor in causing the accident, City is immune from liability under section 830.8." (Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1193.)
"A bulb-out is an extension of the sidewalk, usually at the corner of an intersection, that lessens the distance pedestrians must traverse across a street." (Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1184, fn. 4.)
The same is true concerning Torres's assertion that inadequate lighting caused a "trap." As the County points out, "darkness is a naturally occurring condition that the city is under no duty to eliminate. Thus, the fortuity of locating the streetlight at a spot where it illuminates the crosswalk does not render the crosswalk dangerous without the light." (Plattner v. City of Riverside (1999) 69 Cal.App.4th 1441, 1445.) Moreover, the evidence on which he relies to support his argument was ruled inadmissible by the trial court.
While it is true that the County had notice that residents considered the accident site dangerous, that did not amount to substantial evidence of an actual dangerous condition. In 2002, when the County presented the proposed reconfiguration plan, residents requested a smart crosswalk on Santa Fe Avenue between Independence Avenue and Poplar Place because there was no place to cross Santa Fe Avenue without the fear of being struck by a vehicle. In response, the Department conducted a study at that location to assess the need to install a smart crosswalk, and concluded it was not needed. As the appellate court explained in Sun, "while the citizens' letters are relevant to the issue of whether City had notice of a potentially dangerous intersection, they are not competent evidence that the intersection was, in fact, a 'dangerous condition' within the meaning of section 835." (Sun, supra, 166 Cal.App.4th at p. 1188.) As there was no substantial evidence that the County had notice of an actual dangerous condition, it had no duty to warn.
In his final challenge to the application of design immunity, Torres argues that whatever design immunity the County might have had once was lost in the time between the plan approvals and the accident. "To demonstrate loss of design immunity a plaintiff must also establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings." (Cornette, supra, 26 Cal.4th at p. 66.)
As evidence of changed conditions, Torres points to the deposition testimony of the County's expert, Weston Pringle, in which he testified as to the removal of a stop sign for northbound traffic at the intersection of Santa Fe Avenue and Independence Avenue. Pringle agreed that the sign's removal "[c]ould have had some effect" on the traffic volume heading northbound towards Poplar Place. However, the expert clarified that he would not expect a "major change north of the intersection." In fact, when pressed as to whether the stop sign's removal would cause an increase in "traffic density heading northbound towards Poplar Place," the expert demurred.
Such evidence amounts to mere speculation on the possibility that traffic might have increased. Accordingly, it does not constitute to substantial evidence of a changed condition for purposes of losing design immunity. "[W]hile increased traffic volume may constitute changed physical conditions [citations], design immunity is not lost simply because the design is operating under changed physical conditions. There must be evidence that the design, under changed physical conditions, has produced a dangerous condition of which the State is aware. [Citations.] . . ." (Alvarez, supra, 79 Cal.App.4th at p. 737; see also, e.g., Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, 60-61 [finding plaintiffs' showing inadequate where they "relied on the increase in traffic at the accident location and a corresponding increase in accidents. However, plaintiffs failed to produce evidence that either statistic made the condition of the roadway at the accident location inconsistent with state standards or would have rendered it unreasonable for a public entity to approve the design of the roadway."].)
DISPOSITION
The judgment is affirmed. The County is to recover its costs on appeal.
KRIEGLER, J. We concur:
ARMSTRONG, Acting P. J.
MOSK, J.