Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, Super. Ct. No. 373825. David G. Vander Wall, Judge.
Law Offices of Mark S. Nelson, Theressa Y. Toledo and Mark S. Nelson for Plaintiff and Appellant.
Susana Alcala Wood, City Attorney, and Richard B. Evans, Deputy City Attorney, for Defendant and Respondent.
OPINION
CORNELL, J.
Summer Vindiola, a minor, was struck by a car as she attempted to cross Prescott Road in a marked crosswalk. Vindiola, through her guardian ad litem, sued the City of Modesto alleging a dangerous condition of public property. The city moved for summary judgment, which was granted. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On August 20, 2004, Vindiola was walking across Prescott Road in a marked crosswalk. At the location of the crosswalk, Prescott Road is a four-lane roadway with two lanes of traffic running each direction. The automobile that struck Vindiola was driven by Francine Castro and was traveling southbound on Prescott Road. Vindiola suffered injuries.
At the time of the accident, the crosswalk was marked with white thermoplastic material and reflective glass beads. The crosswalk was the type commonly referred to as a ladder crosswalk, with longitudinal stripes running at 90-degree angles to the two standard crosswalk lines. At the center of the crosswalk were raised concrete pedestrian medians, which provided a stopping point between the northbound and southbound lanes of Prescott Road. In addition, approximately 250 feet in advance of the crosswalk from both the northbound and southbound approaches were posted reflective signs warning of the nearby crosswalk.
The officer dispatched to the scene interviewed Castro and witnesses to the accident. Castro claimed she attempted to brake after seeing Vindiola in the crosswalk, but was unable to stop in time. A witness, Annie Nguyen, who was traveling in the car behind Castro, stated she did not see Castro’s brake lights activate until after Castro hit Vindiola. Castro was cited for failing to yield and for traveling too fast.
On August 11, 2005, Vindiola, through her guardian ad litem, sued the City of Modesto (City), alleging a dangerous condition of public property. Vindiola claimed the crosswalk constituted a dangerous condition because it was a continuation of a bike/pedestrian trail and its use was encouraged, but the crosswalk lacked any signals or lights to alert drivers that the crosswalk was occupied.
City filed a general denial on September 26, 2005, and asserted affirmative defenses. City asserted that liability was precluded under the design immunity set forth in Government Code section 830.6. It also asserted it was entitled to judgment in its favor pursuant to Government Code sections 830 and 830.2 because any alleged defects were insignificant or trivial.
Thereafter, on January 19, 2007, City filed a motion for summary judgment. The motion was accompanied by a separate statement of undisputed material facts, points and authorities, and other evidence in support of the motion. Vindiola opposed the motion.
A hearing on the motion was held on April 6, 2007. City objected to a declaration submitted in support of the opposition to the motion and the trial court sustained the objection. The trial court granted the motion, finding that (1) City had established all the elements of design immunity; (2) Vindiola had failed to establish the elements necessary for loss of design immunity; and (3) the crosswalk was not a dangerous condition of public property.
DISCUSSION
Vindiola challenges the trial court’s evidentiary ruling on the declaration and maintains that this court reviews the evidentiary ruling on a de novo basis. Vindiola also maintains that City failed to establish design immunity and that a change of condition precluded application of design immunity. Finally, Vindiola contends the crosswalk’s dangerous condition was not trivial.
I. Standard of Review for Summary Judgment
Many of the legal principles applied by appellate courts when reviewing a motion for summary judgment are well established. (See Code Civ. Proc., § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 (Aguilar); Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602 (Brantley) [describing the three-step analysis used by this court to analyze motions for summary judgment]; cf. Zebrowski, The Summary Adjudication Pyramid (Nov. 1989) 12 L.A. Law. 28 [breaking down the analysis of a section 437c motion into four main steps and presenting a flow chart of that analysis].)
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
We independently review whether a triable issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 (Merrill).) A triable issue of fact exists when the evidence reasonably would permit the trier of fact, under the applicable standard of proof, to find the purportedly contested fact in favor of the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 850.)
The first step for a court analyzing a motion for summary judgment is to “identify the issues framed by the pleadings” because the motion is directed to the opponent’s allegations and “showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. [Citations.]” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064; see Brantley, supra, 42 Cal.App.4th at p. 1602.)
The second step involves determining whether the moving party has satisfied its initial burden of producing evidence “to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850; see Brantley, supra, 42 Cal.App.4th at p. 1602.) A defendant moving for summary judgment must establish “[a] cause of action has no merit.” (§ 437c, subd. (o).) A moving party defendant bears the burden of persuasion that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Id., subd. (p)(2); Aguilar, at p. 850.)
Often, the evidence relied upon by the moving party does not establish the material facts directly. In those situations, the rules regarding when a material fact is established by inference come into play. The broadest of these rules mandates that “the court shall consider all of the evidence set forth in the [moving party’s] papers … and all inferences reasonably deducible from the evidence.” (§ 437c, subd. (c).) When considering what inferences to draw, the court must analyze the evidence in the light most favorable to the party opposing the motion for summary judgment. (Aguilar, supra, 25 Cal.4th at p. 843.) Furthermore, an issue of material fact may not be resolved based on inferences if contradicted by other inferences or evidence. (§ 437c, subd. (c); Aguilar, at p. 856; see Zebrowski, The Summary Adjudication Pyramid, supra, 12 L.A. Law. at p. 29 [examination of moving party’s evidence must be completed before considering opposing party’s evidence].)
If the moving party has met its burden, then the court proceeds to the third step of determining whether the opposition has demonstrated a triable issue of material fact. (Brantley, supra, 42 Cal.App.4th at p. 1602.)
The Supreme Court summarized the applicable law on summary judgment in Merrill, supra, 26 Cal.4th at pages 476-477:
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings … but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action .…’ [Citations.]”
II. Design Immunity Attached
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. [Citation.]” (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 68 (Cornette), fn. omitted; see also Gov. Code, § 835, subd. (b).)
The public entity, however, may escape liability by establishing what is known as “‘design immunity.’” (Cornette, supra, 26 Cal.4th at p. 69.) Government Code section 830.6 states in part:
“Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.”
Design immunity is intended to prevent a jury from simply reweighing the same factors already considered by the governmental entity that approved the design. (Baldwin v. State of California (1972) 6 Cal.3d 424, 434 (Baldwin), superseded by statute as stated in Cornette, supra, 26 Cal.4th at p. 71); Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 524-525 (Ramirez).) “‘“[T]o permit reexamination in tort litigation of particular discretionary decisions where reasonable men 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.”’ [Citation.]” (Cameron v. State of California (1972) 7 Cal.3d 318, 326 (Cameron), abrogated on other grounds in Cornette, supra, 26 Cal.4th 63.)
A public entity claiming design immunity must establish 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. (Cornette, supra, 26 Cal.4th at p. 69; Higgins v. State of California (1997) 54 Cal.App.4th 177, 185 (Higgins), abrogated on other grounds in Cornette, supra, 26 Cal.4th 63.)
“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 (Grenier), fns. omitted.)
The first element of design immunity -- a causal connection between the plan and the accident -- requires proof the alleged design defect was responsible for the accident, as opposed to some other independent cause. (Grenier, supra, 57 Cal.App.4th at p. 940; Higgins, supra, 54 Cal.App.4th at p. 185.) “[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 caused in part by poor maintenance and clogging of drainage system], abrogated on other grounds in Cornette, supra, 26 Cal.4th 63; 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 causal relationship is established by Vindiola being injured when she was struck by a car while in the crosswalk. Vindiola’s claim that there is no causal connection because the crosswalk was designed as a bike path, not a pedestrian crossing, is specious. Vindiola was injured while in the marked crosswalk and she is claiming a design defect was a proximate cause of her injuries.
The second requirement for design immunity -- discretionary approval of the design or plan prior to construction -- “simply means approval in advance of construction by the legislative body or officer exercising discretionary authority. [Citation.]” (Ramirez, supra, 192 Cal.App.3d at p. 526.) Thus, design immunity does not immunize design decisions that were not made. (Cameron, supra, 7 Cal.3d at p. 326; Grenier, supra, 57 Cal.App.4th at p. 940; Higgins, supra, 54 Cal.App.4th at p. 185.)
According to the declaration and supplemental declaration submitted by Jeffrey Barnes, the traffic engineer for City, the crossing on Prescott Road was designed to be part of the Hetch Hetchy bike path to connect the paved path. The bike path was designed to be used by bicyclists, hikers, and pedestrians from its inception. The plans were approved by the city council in September 1993. The original crossing on Prescott Road was installed in April 1994. In 1995, the city council adopted a resolution accepting the completed bike path. This history of approval satisfies the requirements of Vehicle Code section 21106 for legislative approval of crosswalks and meets the second requirement for design immunity.
Reasonableness of the design is the third element of design immunity. At the time of its approval and original installation, the crosswalk exceeded all traffic engineering and state requirements for crosswalks according to the declaration and supplemental declaration of Barnes.
In October 2001, pedestrian symbol signs were posted approximately 250 feet in advance of the crossing from either direction. The signs were posted to “increase awareness of pedestrian crossing at the location.” The pedestrian symbol signs were posted because of “increased pedestrian usage” of the crossing. At the time of the accident, the crosswalk met all mandatory traffic engineering standards.
Having provided virtually undisputed evidence of all three necessary elements, City established that design immunity attached.
III. Design Immunity Was Not Lost
“Design immunity under [Government Code] section 830.6 is not perpetual but may be lost as a result of changed circumstances which subsequently render the improvement dangerous.” (Compton v. City of Santee (1993) 12 Cal.App.4th 591, 598.) “[T]he Legislature did not intend that public entities should be permitted to shut their eyes to the operation of a plan or design once it has been transferred from blueprint to blacktop.” (Baldwin, supra, 6 Cal.3d at p. 427.)
“To demonstrate loss of design immunity a plaintiff must … establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings. [Citations.]” (Cornette, supra, 26 Cal.4th at p. 66.)
Thus, the burden was on Vindiola, in response to City’s motion, to show that a triable issue of material fact existed as to each of these three elements. (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806-807 (Mirzada).)
No change of physical condition
Vindiola has failed to demonstrate that there was a change of physical condition that would lead to a loss of design immunity. Vindiola seems to believe that development of new technology, changes to other intersections or crosswalks, and increased pedestrian use constitute changed conditions. She is mistaken.
A change in design or engineering standards does not constitute a change of condition leading to loss of design immunity. (Dole Citrus v. State of California (1997) 60 Cal.App.4th 486, 493.) Technological advances in design and engineering do not constitute a change in physical condition. (Sutton v. Golden Gate Bridge Highway & Transportation Dist. (1998) 68 Cal.App.4th 1149, 1162-1163 (Sutton).)
That City may have inspected and installed improvements at other locations under its control does not constitute a change in physical condition. (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 738.)
Furthermore, neither passage of time nor increased traffic constitutes a change of condition that leads to a loss of design immunity. (Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, 61 [traffic volume]; Cameron, supra, 7 Cal.3d at p. 326 [passage of time].)
Vindiola failed to present any evidence of a change in the physical condition such that would lead to a loss of design immunity. Having failed to establish this first element, we need not examine the other two elements required to be established to demonstrate loss of design immunity because all three elements must be present. (Mirzada, supra, 111 Cal.App.4th at pp. 806-807.)
William R. Neuman declaration
Vindiola submitted a declaration from William R. Neuman, a retired professor of engineering, to support her opposition to the summary judgment motion. City objected to the admissibility of the declaration on the grounds that it was conclusory, speculative, and lacked foundation. The trial court sustained the objection.
Vindiola maintains that if Neuman’s declaration were admitted, a triable issue of material fact would be shown. She is mistaken.
Notwithstanding the rule of independent appellate review of the existence of a triable issue of material fact, an abuse of discretion standard is applied to (1) challenges to the trial court’s rulings on evidentiary objections (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169) and (2) matters committed to the discretion of the trial court by the express language of section 437c. (See § 437c, subds. (b), (e).) Vindiola cites Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 for the proposition that we review evidentiary rulings of the trial court in connection with a summary judgment motion on a de novo basis. Biljac, however, does not stand for that proposition. Biljac merely states that “the parties remain free to press their admissibility arguments on appeal.” (Id. at p. 1419.)
Even if Neuman’s declaration were admitted, there is no triable issue of material fact. “‘That a plaintiff’s expert may disagree [that a design decision was made] does not create a triable issue of fact.’ [Citation.]” (Sutton, supra, 68 Cal.App.4th at p. 1161.)
Neuman concluded that “If the project was contemplated to be a bicycle path and significant pedestrian use was not contemplated at the time of the approval, and if city council approval is required for mid-block crossings, the issue should have gone back to the council when it was recognized that there was pedestrian use, under standard traffic engineering processes.”
In his declaration, Barnes states that the original crosswalk was designed to include “two raised concrete pedestrian refuge medians” in order to provide “pedestrians a stopping point.” Barnes’s supplemental declaration reiterates that the bike path was intended to be used as a “walking/hiking trail so conventional pedestrian activity was contemplated.” Clearly, the original crosswalk, although a part of the Hetch Hetchy bike path, also was intended to be used by pedestrians at the time it was approved by the city council. The approval by the city council of the original crossing satisfied the requirement of Vehicle Code section 21106 for local legislative approval to establish a crosswalk and no further approval was needed. There was no requirement that City approve any subsequent modification to the crosswalk.
Neuman also concluded that “The City negligently failed to consider mitigation of the danger by use of in roadway warning lights or other similar systems, on a continuing basis and specifically by failing to consider this crossing in its priority system.” The use of roadway warning lights, however, is not required at midblock crossings.
The crossing met or exceeded all traffic engineering standards at the time of its installation. At the time of the installation of the crosswalk, the roadway warning lights mentioned by Neuman in his declaration had not been developed. At the time of the accident, the roadway warning lights were not required; they were an available option.
Furthermore, nothing in Neuman’s declaration establishes that there has been a change in the physical conditions. Neuman’s declaration refers to changes in the frequency of use and technological innovations, discussed ante, which do not constitute a change in physical condition.
IV. Dangerous Condition
Vindiola also maintained that midblock crosswalks were an inherently dangerous condition for which City should be held liable. Vindiola relied on Neuman’s declaration, which states that in his opinion midblock crossings are inherently dangerous and present an unreasonable risk of harm to those exercising due care. This constitutes no more than a disagreement with City’s discretionary design decision, which does not create a triable issue of material fact. (Sutton, supra, 68 Cal.App.4th at p. 1161.) There was no evidence presented that midblock crossings are precluded per se.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
WE CONCUR: VARTABEDIAN, Acting P.J., KANE, J.