The opinion
Filed 10/7/25 Vance v. City of Riverside CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MALYAH JANE VANCE et al., D084181
Plaintiffs and Appellants,
v. (Super. Ct. No. RIC1905830)
CITY OF RIVERSIDE et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Riverside County,
Christopher B. Harmon, Judge. Reversed.
Rizio Lipinsky Law Firm, Greg Rizio, Eric I. Ryanen and Lynn P.
Whitlock for Plaintiffs and Appellants.
Office of Riverside City Attorney and Rebecca McKee-Reimbold for
Defendants and Respondent.
Plaintiff and appellant Malyah Jane Vance appeals from a summary
judgment in favor of defendant and respondent City of Riverside (City) on
Vance’s claim under Government Code sections 830 and 8351 that City
maintained a dangerous condition at the intersection of Via Zapata and
Canyon Crest Drive (the intersection or at times, the subject intersection),
where another driver struck her vehicle, causing her injuries.2 The court
ruled City had met its initial burden to show Vance’s injuries were not caused
by any dangerous condition at the accident site, and Vance had not raised a
triable issue of material fact on the issue of whether any dangerous condition
proximately caused her injuries. Challenging some of the court’s evidentiary
rulings, Vance contends the court erred by granting summary judgment; that
the evidence raised triable issues of material fact as to the existence of a
dangerous condition, including on the issue of causation, and on design
immunity. Vance argues that even if City had design immunity, it was still
liable because changed circumstances caused the design to constitute a
dangerous condition and City failed to warn of the dangerous road condition.
The City’s sole responding argument is that Vance failed to
demonstrate a triable issue of material fact on the issue of causation.
Exercising the required de novo review, we conclude Vance presented issues
for a trier of fact on causation, as well as whether the intersection presented
a dangerous condition and design immunity, precluding summary judgment.
We reverse.
1 Undesignated statutory references are to the Government Code.
2 Vance also sued the driver of the vehicle that hit her as well as
defendants Ara and Vahram Sevacherian, who also obtained summary
judgment. Vance is not appealing the summary judgment for the
Sevacherians. Vance’s mother, Jade Downey, sued City for negligent
infliction of emotional distress, a claim that the California Supreme Court
revived from demurrer. (Downey v. City of Riverside (2024) 16 Cal.5th 539,
544, 561.) Vance asserts that the parties have stipulated to stay Downey’s
claim pending this appeal.
2
FACTUAL AND PROCEDURAL BACKGROUND
On review of a summary judgment, we state the undisputed facts and
liberally construe the evidence in support of Vance, resolving evidentiary
doubts in her favor. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39.) We
consider all the evidence set forth in the moving and opposing papers except
that to which objections were made and sustained. (Ibid.)
In December 2018, Vance was driving eastbound on Via Zapata and
entered the intersection of Via Zapata and Canyon Crest Drive when her
vehicle was struck by another vehicle traveling southbound on Canyon Crest
Drive. Canyon Crest Drive’s posted speed limit is 45 miles per hour, but the
“critical speed,” which means the speed at which 85 percent of drivers drive,
is 52 miles per hour. In the moments before the collision Vance was lost; she
was using a navigation system and was on her cell phone speaking to Downey
who was attempting to give her directions. Vance does not remember
anything from that day, but was told she did not stop at the stop sign. The
other driver estimated he was traveling on Canyon Crest Drive at 50 miles
per hour.
Vance sued City and others. Her operative third amended complaint
includes a cause of action under section 835, alleging City created, or
permitted to exist a dangerous condition of public property so as to cause her
damage. She alleged the traffic markings, signals, warnings, medians and
other fixtures were defective in design, manufacture and warning, creating
an unreasonable and foreseeable risk of injury to occupants of vehicles in the
intersection. She alleged those conditions, combined with the condition of the
pavement, road design, and speed limit, created a dangerous condition of
public property.
3
City moved for summary judgment. It pointed out that Vance in
discovery responses had stated that the facts supporting her dangerous
condition claim were that (1) the line of sight of southbound Canyon Crest
Drive from Via Zapata was too short; (2) the line of sight was limited by
designated parking along Canyon Crest Drive; (3) the line of sight was
limited by large trees planted in the parkway along Canyon Crest Drive; and
(4) the 45-mile-per-hour speed limit was unsafe. Explaining that the subject
intersection had been part of design improvement plans in 1992 and 2009, as
well as a 2017 speed survey, City argued it was entitled to judgment as a
matter of law based on design immunity under section 830.6. It also argued
that on the day of the collision the intersection did not constitute a dangerous
condition; the danger arose only from Vance being distracted by her cell
phone and navigation system, it had no actual or constructive notice of any
dangerous condition before the collision, and plaintiffs could not prove a
dangerous condition by evidence of any substantially similar prior accidents.
City argued there was no substantial evidence that any condition it created
proximately caused Vance’s injuries.
City relied in part on Vance’s deposition testimony that she had no
recollection of the events of that day, but knew the reason the accident
happened was because she did not stop for a stop sign. It presented
declarations from City traffic engineers Steve Libring and Nathan Mustafa.
Libring stated that in 2009, while working as a traffic engineer for City, he
was assigned a traffic improvement project involving the Canyon Crest Drive
and Via Zapata intersection, involving, among other things, striped parking
lanes and appropriate signage adjacent to the second lanes of travel along
north and south Canyon Crest Drive. As part of his project, he determined
that the existing signage, including the location of the stop sign controlling
4
the intersection, as well as the limit line, were adequate. More specifically,
Libring determined that the stop sign at the intersection of southbound
Canyon Crest Drive and eastbound Via Zapata was “set as far forward as
reasonably possible in order to accommodate drivers making a left hand turn
from Via Zapata onto northbound Canyon Crest Drive” and the intersection
was designed such that a driver could creep forward to obtain additional
visibility. He averred that his decision to allow the location of the stop sign
to remain was appropriate and reasonable under the circumstances. Libring
opined that the intersection’s design and City’s redesign improvement plan,
including the addition of parking stripes and parking restrictions, was
adequate, reasonable and met with City’s standard of traffic design. He
stated the redesign improvement plan was not responsible for causing the
collision.
Mustafa stated that the intersection’s design was reasonable from an
engineering standpoint; that “[t]he stop sign at the subject intersection
provided adequate visibility for a driver on Via Zapata to safely turn onto
Canyon Crest Drive. In addition, drivers on Via Zapata could creep forward
from the limit line at the stop sign toward the edge of the lane of oncoming
traffic on Canyon Crest Drive.” He stated that he had approved a 45-mile-
per-hour speed limit on Canyon Crest Drive as part of a 2017 traffic survey.
Mustafa further reviewed a collision summary report from May 2014 to May
2019 for the subject intersection and “there [were] no allegations that any of
these prior collisions were caused by obstructed views.”
Vance opposed the motion, filing objections to some of City’s evidence
and submitting 199 additional material facts. She agreed her theory was
that the subject intersection had “line-of-sight issues for vehicles entering
Canyon Crest Drive from Via Zapata,” her route on the day of the collision.
5
She argued that while she could not recall the collision that day, there was
evidence that she never saw the other vehicle “by virtue of her having driven
directly into his path.” According to Vance, the line of sight distance for
vehicles entering Canyon Crest Drive from eastbound Via Zapata was “far
less than the applicable standards for proper and safe road design” based on
American Association of State Highway and Transportation Officials
(AASHTO) and Caltrans standards. She argued sight was further limited by
vehicles legally parked in a designated parking lane along the northwest side
of the intersection; therefore, reducing the speed limit to 40 miles per hour,
as well as prohibiting parking and removing trees, would increase the line of
sight to meet applicable standards. Vance argued that City service requests
and work orders from 2002 to 2019 after the accident (which she summarized
in her papers, as well as her additional material facts) established City was
aware the intersection was dangerous due to inadequate line-of-sight and
view obstructions to motorists entering Canyon Crest Drive from Via Zapata
long before City in 2009 added the parking lane under the work order from
which it claimed design immunity.
Vance argued there had been 13 prior accidents at the intersection in
14 years, between February 2008 and March 2022, five of which were
collisions between a vehicle southbound on Canyon Crest Drive and a vehicle
eastbound on Via Zapata, and three occurring between January 2009 and
April 2016 after City added the parking lane but before Vance’s collision. She
presented evidence that local residents Jeff Waller and Mayra Flores believed
the intersection was very dangerous, with visibility issues for drivers
6
attempting to turn onto Canyon Crest Drive from Via Zapata.3 She also
presented deposition testimony from a police officer, Jorge Cuevas, who
arrived after the accident and took photographs of the scene, which was
blocked off to traffic for the collision. Reviewing photographs, Officer Cuevas
testified there was at least one car parked on southbound Canyon Crest
Drive. Vance submitted deposition testimony from another resident, Teddie
Glover, a manager of an apartment complex on the corner of Canyon Crest
Drive and Via Zapata, who stated that on the day of the accident there were
several parked cars along Canyon Crest Drive, up the hill from Via Zapata.
Glover testified she was aware of five prior accidents that had occurred at the
intersection where cars were pulling out eastbound from Via Zapata and
were hit by southbound cars on Canyon Crest Drive. She was aware of
“maybe” seven or eight after Vance’s accident. Glover testified her concerns
were the traffic speed, and “that you cannot see when you’re trying to pull out
of . . . Via Zapata onto Canyon Crest [Drive].” According to Glover, the view
obstruction was because of vehicles parked on Canyon Crest Drive.
On the issue of design immunity, Vance argued that City did not
submit a legitimate engineering plan and the design was not reasonable, but
even assuming City could meet those requirements, changed circumstances
caused the design to constitute a dangerous condition.
Vance presented declarations from civil engineering and accident
reconstruction experts. Dale Dunlap, an expert on the standard of care for
civil and traffic engineers, averred in part that the available sight distances
for a car on Via Zapata were “severely deficient” and did not meet
engineering standards for intersection sight distances as required by
3 The court in its ruling stated it was unable to find these declarations,
but as counsel pointed out in oral argument they were attached as exhibits to
the opposition papers.
7
AASHTO or Caltrans. He stated that the failure to provide adequate sight
distance to intersection users that met Federal and State minimum
standards made the intersection unsafe and dangerous, and the “deficient
available sight distances . . . was [sic] the primary causation factor in the
subject accident.”
David Eisenbeisz, an accident reconstruction expert, addressed
whether restricted sight distances for eastbound vehicles on Via Zapata
and/or southbound vehicles on Canyon Crest Drive were significant factors in
the cause of the collision. Based on photographs of the scene and Glover’s
deposition excerpts concerning the parked cars she saw immediately after the
accident, he stated “it is most probable from [Glover’s] testimony . . . and the
scene photographs that there was a line of parked vehicles along the west
curb of the subject accident.” He averred that “[b]ecause of restricted sight
distance at the [intersection of Via Zapata and Canyon Crest Drive], Ms.
Vance did not perceive [the other vehicle] approaching and entered the
intersection, whereupon a collision occurred between [their vehicles].” He
also opined that the “parked vehicles and trees along the west side of Canyon
Crest Drive at the time of the subject accident were significant factors in the
inability of both drivers to make reasonable informed decisions that might
have avoided the collision.” He stated: “Had a clear line-of-sight between
[the other vehicle and Vance’s vehicle] been provided, it would have allowed
[the other driver on Canyon Crest Drive] to take evasive action in time to
avoid the collision.”
Vance submitted Downey’s declaration in which Downey stated that in
the minutes before the collision, she was speaking to Vance, and could tell
from the sound quality of their connection that Vance’s phone was on the
8
“ ‘speaker’ (hands-free) setting.” Downey stated she was giving Vance “turn-
by-turn directions” to the intersection and told Vance to make a left turn on
Canyon Crest Drive. She stated: “After she stopped her car at that
intersection, I heard her recite, ‘I’m going to go left, OK, OK, OK’ in a tone
and in a manner that, to my understanding, was consistent with her talking
to herself while waiting to turn left, and mentally ‘checking off’ traffic on
Canyon Crest [Drive] as it approached and cleared the intersection so she
could execute the left turn.”
In reply, City lodged objections to some of Vance’s evidence, including
to the declarations of Downey, Waller, Flores, Dunlap, and Eisenbeisz. It
argued Vance did not present evidence demonstrating line-of-sight issues
were a substantial factor in causing her injuries and it was immune as a
matter of law under section 830.6. According to City, there was no “credible
evidence” either that parked cars actually blocked her view of southbound
Canyon Crest Drive, or that trees planted along the southbound side of
Canyon Crest Drive actually blocked her view and caused the collision. City
argued that the experts provided only “speculation and improper factual and
legal conclusions” that were based on Downey’s “self-serving” declaration,
which it argued was entirely inadmissible as based on hearsay and
inappropriate speculation. It pointed out Vance did not know whether she
stopped at the stop sign or ran through it; there were no witnesses who saw
Vance stop there; and “[t]he only contemporaneous information we have as to
this issue is the statement of [the other driver], who provided he was driving
at 50 mph when [Vance] ‘suddenly’ drove into the path of his vehicle.”
9
The trial court granted summary judgment. Ruling on a few of the
parties’ evidentiary objections,4 it found City met its initial burden of
presenting evidence to show Vance’s injuries were not caused by any
dangerous condition at the accident site. The court reasoned: “Even
assuming a triable issue exists regarding whether a condition at or near the
accident site created a substantial risk of injury when used with due care,
[Vance’s] opposing papers fail to raise a triable issue regarding whether such
a condition proximately caused the injuries. To establish causation,
therefore, [Vance] must show that a physical condition of the City’s property
was a ‘substantial factor’ in bringing about [her] harm. [Citation.] A plaintiff
may prove causation through direct and circumstantial evidence and
reasonable inferences drawn from that evidence. [Citation.] But we cannot
draw inferences ‘ “from thin air.” ’ ” It found no “admissible evidence that the
alleged dangerous condition of the intersection was the legal cause of Vance’s
unfortunate injuries following her collision with an out of state, uninsured
driver.” The court did not reach the issue of design immunity.
Vance filed this appeal from the ensuing judgment.
4 The court overruled Vance’s objections to her and Downey’s deposition
testimony as “not well-taken”; sustained Vance’s objection to portions of a
traffic report in which an officer stated Vance caused the collision by failing
to stop at the intersection’s stop sign; and overruled Vance’s objections to
Libring’s and Mustafa’s declarations, ruling they had presented adequate
foundation for their conclusions. The court did not address City’s objections
to the Waller and Flores declarations and sustained City’s objections to
Downey’s declaration on ground it assumed facts, lacked foundation, called
for speculation and was vague and ambiguous. It declined to rule on City’s
objections to an attorney declaration attaching certain deposition testimony
of two other individuals as “not material.”
10
DISCUSSION
I. Summary Judgment Standards and Appellate Review
“ ‘A trial court properly grants a motion for summary judgment where
“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.” ’ ” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)
“ ‘[F]rom commencement to conclusion, the party moving for summary
judgment bears the burden of persuasion’ ” on those matters. (Rheinhart v.
Nissan North America, Inc. (2023) 92 Cal.App.5th 1016, 1023.)
Thus here, City bears the burden of showing the court either that
Vance “ ‘ “has not established, and cannot reasonably expect to establish,” ’
the elements of her cause of action” (Wilson v. 21st Century Ins. Co. (2007) 42
Cal.4th 713, 720) or there is a complete defense to that cause of action.
(Dailey v. City of San Diego (2013) 223 Cal.App.4th 237, 249.) It can meet
this burden by presenting evidence that either conclusively negates an
element of Vance’s causes of action or shows that Vance does not possess, and
cannot reasonably obtain, evidence necessary to establish at least one
element of each cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 853-854; Taylor v. Financial Casualty & Surety, Inc. (2021) 67
Cal.App.5th 966, 979.) City “ ‘must demonstrate that under no hypothesis is
there a material factual issue requiring trial.’ ” (Dailey v. City of San Diego,
at p. 249, italics added, quoting Anderson v. Metalclad Insulation Corp.
(1999) 72 Cal.App.4th 284, 289-290; Eriksson v. Nunnink (2011) 191
11
Cal.App.4th 826, 850.) If City does not meet its burden on either point, the
motion must be denied. (Dailey, at p. 249.)5
Once City satisfies its initial burden, “the burden shifts to [Vance] . . .
to show that a triable issue of one or more material facts exists as to the
cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)
Vance must “set forth the specific facts showing that a triable issue of
material fact exists as to the cause of action or a defense thereto.” (Ibid.)
She may not raise a triable issue of fact by relying on evidence that is
inadmissible at trial. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 543; see also Sweetwater Union High School Dist. v. Gilbane Building
Co. (2019) 6 Cal.5th 931, 945 [relying on Perry: the summary judgment
statute “ ‘has always required the evidence relied on in supporting or
opposing papers to be admissible’ ”].)
We review a trial court’s ruling on a motion for summary judgment de
novo. (Samara v. Matar (2018) 5 Cal.5th 322, 338; Jackson v. Lara (2024)
5 City asserts that Vance incorrectly states its summary judgment
burden when she cites the proposition that it must demonstrate “under no
hypothesis” material factual issues exist requiring trial. It maintains Vance’s
cited authority, Anderson v. Metalclad Insulation Corp., supra, 72
Cal.App.4th 284, applies this standard only to a defendant’s summary
judgment motion raising affirmative defenses. The case cited by Anderson for
this proposition in turn cites to Flowmaster, Inc. v. Superior Court (1993) 16
Cal.App.4th 1019, 1026, which states: “To succeed, a defendant moving for
summary judgment must ‘conclusively negate a necessary element of the
plaintiff’s case or establish a complete defense and thereby demonstrate that
under no hypothesis is there a material factual issue which requires the
process of a trial.’ ” (Id. at p. 1026.) It is not clear that the challenged
language is limited to summary judgment on an affirmative defense. We
need not decide the point because City raised design immunity in its motion,
which is an affirmative defense. (Cornette v. Department of Transportation
(2001) 26 Cal.4th 63, 66 (Cornette); Kabat v. Department of Transportation
(2024) 107 Cal.App.5th 651, 661.) Even if City were correct, the standard
applies.
12
100 Cal.App.5th 337, 343.) “ ‘ “In practical effect, we assume the role of a
trial court and apply the same rules and standards which govern a trial
court’s determination of a motion for summary judgment.” ’ ” (Jackson, at p.
343.) We consider “ ‘ “ ‘ “all the evidence set forth in the moving and opposing
papers except that to which objections were made and sustained.” ’
[Citation.] We liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.” ’ ” (Hampton v. County of San Diego, supra, 62 Cal.4th
at p. 347.) “ ‘We affirm the trial court’s decision if it is correct on any ground
the parties had an adequate opportunity to address in the trial court,
regardless of the reasons the trial court gave.’ ” (Wolf v. Weber (2020) 52
Cal.App.5th 406, 410.) “[A]ny doubts as to the propriety of granting a
summary judgment motion should be resolved in favor of the party opposing
the motion.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.)
II. Court’s Evidentiary Rulings
Vance challenges several of the trial court’s rulings on her and City’s
evidentiary objections. We need not resolve Vance’s claims of error on these
points. Even if we assume each of the court’s rulings was correct, as
discussed below, we conclude Vance’s other evidence raises triable issues of
material fact for a jury, precluding summary judgment.
III. Government Entity Liability for Dangerous Conditions
“Under the Government Claims Act, a tort action cannot be maintained
against a government entity unless the claim is premised on a statute
providing for that liability. (See § 815.) . . . [S]ection 835 . . . ‘ “is the
principal provision addressing the circumstances under which the
government may be held liable for maintaining a dangerous condition of
public property.” ’ [Citation.] To establish liability under section 835, a
13
plaintiff must show: ‘(1) “that the property was in a dangerous condition at
the time of the injury”; (2) “that the injury was proximately caused by the
dangerous condition”; (3) “that the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was incurred”; and (4) either (a)
that a public employee negligently or wrongfully “created the dangerous
condition” or (b) that “[the] public entity had actual or constructive notice of
the dangerous condition a sufficient time prior to the injury to have taken
measures to protect against the dangerous condition.” ’ ” (Tansavatdi v. City
of Rancho Palos Verdes (2023) 14 Cal.5th 639, 652-653 (Tansavatdi).)
“[S]ection 835 expressly authorizes two different forms of dangerous
conditions liability: an act or omission by a government actor that created the
dangerous condition (§ 835, subd. (a)); or, alternatively, failure ‘to protect
against’ dangerous conditions of which the entity had notice (id., subd. (b)).
The term ‘protect against’ is statutorily defined to include, among other
things, ‘warning of a dangerous condition.’ ” (Tansavatdi, at p. 653; Kabat v.
Department of Transportation, supra, 107 Cal.App.5th at p. 660.)
A “ ‘[d]angerous condition’ ” is statutorily defined as “a condition of
property that creates a substantial (as distinguished from a minor, trivial or
insignificant) risk of injury when such property or adjacent property is used
with due care in a manner in which it is reasonably foreseeable that it will be
used.” (§ 830.) Such a condition proximately causes a plaintiff’s injuries
when the condition of the property is a “substantial factor” in bringing about
their harm. (Milligan v. Golden Gate Bridge Highway & Transportation Dist.
(2004) 120 Cal.App.4th 1, 8-9.) Where a third party’s negligence is a direct
cause of the injury, a public entity may nevertheless be held liable if “ ‘the
dangerous condition of its property combines with a third party’s negligent
conduct to inflict injury.’ ” (Cordova v. City of Los Angeles (2015) 61 Cal.4th
14
1099, 1105; Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 754 [“When
a third party’s conduct is the immediate cause of a plaintiff’s harm, the
question becomes whether the dangerous condition ‘increased or intensified’
the risk of injury from the third party’s conduct”].)
Section 835 dangerous condition liability is subject to statutory
exceptions, including for so-called “design immunity.” (Tansavatdi, supra, 14
Cal.5th at p. 653.) Design immunity “precludes liability for any injury caused
by ‘the plan or design of . . . , or an improvement to, public property.’
(§ 830.6.) [It] requires that a public entity establish three elements: ‘(1) a
causal relationship between the plan or design and the accident; (2)
discretionary approval of the plan or design prior to construction; and (3)
substantial evidence supporting the reasonableness of the plan or design.’
[Citation.] Resolution of the third element—the existence of substantial
evidence supporting the reasonableness of the adoption of the plan or
design—is a matter for the courts, not the jury, to decide.” (Tansavatdi,
supra, 14 Cal.5th at p. 653.) “ ‘The rationale for design immunity is to
prevent [the fact-finder] 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 pp. 653-654.)
IV. Vance’s Evidence Established Triable Issues on the Existence of a
Dangerous Condition
“ ‘Ordinarily, the existence of a dangerous condition is a question of
fact, but whether there is a dangerous condition may be resolved as a
question of law if reasonable minds can come to but one conclusion.
[Citation.] “[I]t is for the court to determine whether, as a matter of law, a
given defect is not dangerous. This is to guarantee that cities do not become
15
insurers against the injuries arising from trivial defects.” ’ ” (Thimon v. City
of Newark, supra, 44 Cal.App.5th at p. 755; see Bonanno v. Central Contra
Costa Transit Authority (2003) 30 Cal.4th 139, 148.)
Vance contends there are triable issues of material fact as to whether
the intersection of Canyon Crest Drive and Via Zapata was dangerous. She
focuses on evidence that she acted with due care, City’s notice of the
dangerous condition from citizen and resident complaints about the
intersection, and the existence of substantially similar accidents.6 Vance
references her own statement of material issues of fact showing line-of-sight
deficiencies at the intersection were the primary cause of the collision.
Though Vance’s briefing mostly incorporates prior arguments or
evidence by reference, having reviewed her evidence, we are compelled to
agree that the record presents triable issues of material fact as to whether
the intersection was in such a condition to “create[ ] a substantial . . . risk of
injury when . . . used with due care in a manner in which it is reasonably
foreseeable that it will be used.” (§ 830.) “ ‘A dangerous condition of public
property can come in several forms and may be based on an “amalgam” of
factors.’ ” (Thimon v. City of Newark, supra, 44 Cal.App.5th at p. 754.)
Courts have considered public property to be in a dangerous condition “
‘because of the design or location of the improvement, the interrelationship of
its structural or natural features, or the presence of latent hazards associated
with its normal use.’ ” (Bonanno v. Central Contra Costa Transit Authority,
supra, 30 Cal.4th at p. 149; see also Curreri v. City & County of San
6 Vance did not argue below, and does not contend on appeal, that City
failed to meet its threshold summary judgment burden on the existence of a
dangerous condition. She may not do so for the first time on appeal. (DiCola
v. White Brothers Performance Products, Inc., supra, 158 Cal.App.4th at p.
676.)
16
Francisco (1968) 262 Cal.App.2d 603, 607-608, 610-611 [perpendicular
parking on north side of street together with parallel parking on south side of
street, difficulty of maneuvering a car on a steep street, and visibility
problems caused by the parking situations, combined to create a dangerous
condition].)
On this summary judgment record, the existence of a dangerous
condition is a question of fact; it is not a situation where reasonable minds
can only conclude the intersection is safe. (Bonanno v. Central Contra Costa
Transit Authority, supra, 30 Cal.4th at p. 148.) Vance’s experts Dunlap and
Eisenbeisz discussed the restricted or deficient sight distances for cars on Via
Zapata, Dunlap explaining that the sight distances did not meet engineering
standards. Resident Jeff Waller stated in a declaration that he was aware of
four collisions occurring at the intersection, and there were “visibility issues
for drivers attempting to turn right or left onto Canyon Crest [Drive] from
Via Zapata” as “[p]arked vehicles along the west curb line of Canyon Crest
[Drive] north of Via Zapata block the view of approaching traffic on Canyon
Crest [Drive] when attempting to enter the intersection while travelling
eastbound on Via Zapata.” He stated the view was better when no cars were
parked on Canyon Crest Drive north of Via Zapata. He stated that speeding
traffic “further complicates negotiating a turn at the intersection”; that
because of the hazards, he typically rerouted to a different road. He
concluded, “In short, I feel the intersection is very dangerous.” Mayra Flores,
a 15-year local resident, reached the same conclusions. Glover—who lived
directly on the intersection’s corner—described at least five accidents at the
intersection involving drivers attempting to turn onto Canyon Crest Drive
from Via Zapata.
17
City does not address the testimony of these experts and witnesses on
the issue of the intersection constituting a dangerous condition due to the
sight limitations, as demonstrated in part by prior accidents there.
Generally, “ ‘[w]here the circumstances are similar, and the happenings are
not too remote in time, other accidents may be proved to show a defective or
dangerous condition, knowledge or notice thereof, or to establish the cause of
an accident. [Citations.]’ [Citations.] ‘The evidence must relate to accidents
which are similar and which occur under substantially the same
circumstances. [Citations.]’ [Citation.] ‘[T]he requirement of similarity may
vary in strictness according to the purpose for which the evidence is
introduced. Thus, if offered to show a dangerous condition of a particular
thing—such as a step—the other accident must be connected in some way
with that thing; but if offered only to show knowledge or notice of a
dangerous condition, an accident at the place—a broader area—may be
shown.’ ” (Genrich v. State of California (1988) 202 Cal.App.3d 221, 227-228.)
We conclude Vance’s evidence establishes an issue for a trier of fact to
determine on that point.
V. Vance Raised Triable Factual Issues as to Causation
City’s summary judgment argument as to causation was brief. It
pointed out Vance did not remember anything from the day of the collision,
and could say only that she understood the reason the collision occurred was
because she failed to stop at the stop sign. It pointed to evidence that Vance
did not tell her mother she actually stopped. City asserted that Downey
testified Vance was distracted and that she did not know whether Vance
looked before turning. It argued: “Contrary to the claims included in the
[third amended complaint], there is no evidence that any parked cars or
trees/vegetation blocked . . . Vance’s view of southbound Canyon Crest [Drive]
18
at the time of the accident. Ultimately, the report by the Riverside Police
Department memorializing the collision found . . . Vance to be at fault for the
collision by failing to yield at a stop sign.”
City continued: “Vance (and possibly . . . Downey) are the only ones
that could testify as to whether [Vance] looked for oncoming traffic, what she
saw, if her view of traffic was obstructed, what obstructed her view, by what
objects, and whether [Vance] actually stopped at the stop sign. Neither
[Vance nor Downey] can proffer any such evidence. Further, based on the
information we do have, we know [the other driver] was driving over the
posted 45 m.p.h. speed limit, but it was nonetheless determined that . . .
Vance caused the accident by failing to stop for the stop sign. Because no
evidence exists which might demonstrate anyone other than . . . Vance
caused the collision in this matter, her claim against . . . City must fail.”
The court ruled that City had met its initial summary judgment burden
on causation, but that Vance did not establish a triable issue of fact in
response. It reasoned: “To rebut . . . City’s showing, plaintiffs relied
primarily on the opinions of [their] own accident experts Eisenbeisz and
Dunlap and criticisms of . . . City’s expert opinions. But, as discussed above,
plaintiffs offered no evidence that the Eisenbeisz and Dunlap theories
represented reality. Plaintiffs argue Vance, ‘was not, however, suicidal, and
so the evidence she never saw defendant’s vehicle exists simply by virtue of
her having driven directly into his path.’ . . . This . . . statement is not
evidence. There is no evidence that the condition of the intersection or
parking of cars diverted Vance’s attention, obscured her line of sight, caused
her to enter the intersection with a false sense of security that there were no
other vehicles approaching, or otherwise brought about the collision. Vance
was on the telephone with her mother Downey, was lost while attempting to
19
run an errand and does not remember any that happened at all on the date of
the accident. There is simply no admissible evidence that the alleged
dangerous condition of the intersection was the legal cause of Vance’s
unfortunate injuries following her collision with an out of state, uninsured
driver.”
“The issue of causation, like the existence of a dangerous condition,
usually presents a question of fact. [Citation.] However, the issue can be
decided as a matter of law where the facts of a case can permit only one
reasonable conclusion.” (Milligan v. Golden Gate Bridge Highway &
Transportation Dist., supra, 120 Cal.App.4th at p. 9; see Kaney v. Custance
(2022) 74 Cal.App.5th 201, 212.) The substantial factor test required Vance
to “ ‘show some substantial link or nexus between omission and injury.’ ”
(Tansavatdi, supra, 14 Cal.5th at p. 661.) A mere possibility of causation is
not enough. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 484.)
“ ‘ “If the conduct which is claimed to have caused the injury had nothing at
all to do with the injuries, it could not be said that the conduct was a factor,
let alone a substantial factor, in the production of the injuries.” ’ ” (Milligan,
at p. 9.) But when reasonable minds can differ as to the inferences to be
drawn from the evidence, causation must be decided by the jury as an issue of
fact. (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 369,
citing Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.)
We conclude Vance’s evidence raises triable issues of material fact on
causation; that is, that reasonable minds can differ about the inferences to be
20
drawn from the evidence.7 As an initial matter, the trial court sustained
Vance’s objection to the police report’s conclusion about Vance’s fault, a
ruling City does not challenge. As stated, in deciding the propriety of
summary judgment, we do not consider evidence to which objections were
made and sustained. (Gonzalez v. Mathis, supra, 12 Cal.5th at p. 39.)
Further, we hold the fact Vance personally cannot recall the details of
the accident is not dispositive if there is other evidence, including
circumstantial evidence, from which a reasonable inference of causation can
be drawn; her lack of memory does not by itself justify judgment in City’s
favor or prohibit her from presenting evidence raising a triable issue of
material fact on the point. (See e.g., Kaney v. Custance, supra, 74
Cal.App.5th at pp. 217-221 [plaintiff’s inability to remember her fall did not
bar her from proving causation; “[t]hough appellant cannot remember falling
on [the defendant’s] stairs, the circumstantial evidence would permit a trier
of fact to make a reasonable and probable inference that the condition of the
stairs, including the absence of a handrail, was a substantial factor in the
fall”].) City’s summary judgment theory below was based mainly on Vance’s
inability to recall the accident and the police report’s inadmissible conclusion
that she was at fault for failing to stop at the stop sign. We look only to
whether other evidence permits a reasonable inference that the dangerous
condition at the intersection was a substantial factor in causing the accident.
We conclude Vance’s opposition evidence raised triable factual issues
for a jury. “ ‘Where the complexity of [a] causation issue is beyond common
7 Only in her reply brief does Vance clearly argue City did not meet its
initial burden to negate causation. Thus, we do not decide whether City’s
showing demonstrated Vance does not possess, and cannot reasonably obtain,
evidence that the dangerous conditions at the intersection were a substantial
factor in causing her harm. (See Taylor v. Financial Casualty & Surety, Inc.,
supra, 67 Cal.App.5th at p. 979.)
21
experience, expert testimony is required to [prove] causation.’ ” (Kaney v.
Custance, supra, 74 Cal.App.5th at p. 217.) Both Vance’s experts testified
that the limited or restricted sight distances at the intersection was the
“significant factor[ ]” or the “primary causation factor” in her accident.
Dunlap explained his reasoning, setting out in detail the relevant federal and
state standards for safe intersection sight distance and incorporating
photographs: “The available sight distance for an eastbound driver stopped
on Via Zapata to observe approaching southbound traffic on Canyon Crest
Drive was measured and photographed by [his firm] at the time of the field
review on October 8, 2019. As shown in the photographs captioned below, the
limiting factor in the sight distance was a vehicle legally parked along the
west curb line of Canyon Crest Drive approximately 68 feet north of the north
curb line prolongation of Via Zapata.” Citing Glover’s deposition testimony
(among other evidence), Eisenbeisz stated it was “most probable from [it] and
the scene photographs that there was a line of parked vehicles along the west
curb at the time of the subject accident.” Based on all facts as well as his
accident reconstruction experience and training, he opined “the earliest that
Ms. Vance could have possibly perceived [the other vehicle] as a threat was
about 2.0 seconds prior to impact. Her ability to see [the other vehicle] was
obstructed by the presence of the parked vehicles along the west curb, several
large trees located in the parkway along the west side of Canyon Crest Drive,
and the block wall for the apartment complex on the west side of Canyon
Crest Drive. Although Ms. Vance would have been physically able to see a
small portion of [the other vehicle] at 2.0 seconds to impact, it is unlikely that
her complete attention would have been directed to the southbound lanes at
that point in time because she was in the process of negotiating a left turn in
order to reach her intended destination.” He stated that the “cars parked
22
along the west side of Canyon Crest Drive north of Via Zapata prevented Ms.
Vance from seeing [the other vehicle] before she began to accelerate into the
intersection.”
City argues the court “properly sustained evidentiary objections” to
those declarations. We disagree with this interpretation of the court’s ruling.
First, the court did not mention those expert declarations in its ruling on
evidentiary objections. (See fn. 4, ante.) City apparently refers to the portion
of the court’s ruling stating that Vance “offered no evidence that the
Eisenbeisz and Dunlap theories represented reality.” That ruling, however,
does not exclude the experts’ opinions. As best we understand it, the court
was referring to its belief that the record was absent evidence that parked
cars on Canyon Crest Drive at the time of the accident in any way “brought
about the collision.” We reject this strict treatment of the evidence. On a
summary judgment we must view all evidence and draw inferences in the
light most favorable to Vance. In any event, “[w]e are not bound by the trial
court’s stated reasoning or rationales.” (Rheinhart v. Nissan North America,
Inc., supra, 92 Cal.App.5th at p. 1024.)
Here, the experts based their opinions in part on other evidence—from
both Glover and Officer Cuevas—that at about the time of the accident
parked cars were present on the northwest corner of Canyon Crest Drive,
which limited the sight distance for vehicles on Via Zapata seeking to turn
left on Canyon Crest Drive as Vance was attempting to do. City asserts
Glover did not know whether any of the parked cars were there at the time of
the collision. But when asked how long it took her to get to the scene after
she heard the collision, Glover testified, “Just as long as it took me to walk
out [of] my office and walk” which was “within ten minutes” of the accident.
(Italics added.) And according to Officer Cuevas, photographs taken after the
23
accident showed parked vehicles on Canyon Crest Drive.8 He confirmed that
traffic had been blocked off due to the collision. Liberally construed, the
evidence from Glover and Officer Cuevas permits a reasonable,
nonspeculative, inference that the parked cars at the intersection had not
moved since the collision, and were present at the time of the accident.
On appeal, City relies on cases outside the public entity liability context
that explain that when causation presents a matter of speculation or
conjecture, or the probabilities are evenly balanced, the court must resolve
the issue in the defendant’s favor. (Leslie G. v. Perry & Associates, supra, 43
Cal.App.4th 472, 484; Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1104.)9
City argues that because Vance cannot recall the accident, there is no
evidence about whether she stopped at the stop sign or looked before turning,
how she navigated the turn, or that trees, cars or vegetation blocked her line
of sight. City also seeks to distinguish Kaney v. Custance, supra, 74
Cal.App.5th 201 on grounds a motor vehicle accident is “materially different”
8 As Vance explains in reply, the sole objections City advanced as to
Glover’s and Officer Cuevas’s deposition testimony were boilerplate and
technical; that Vance did not highlight the deposition excepts on which she
relied or include only the pages where they appeared. It objected that “all
opinions based on the[ ] deposition transcripts should . . . not be considered.”
City does not repeat these objections or advance them on appeal.
9 City also relies on a 2019 unpublished case involving an apparently
unrelated plaintiff and the City of Santa Barbara, telling us it may be cited
under California Rules of Court, rule 8.1115(b)(1) because it is relevant under
the law of the case doctrine. Under that doctrine, “ ‘the decision of an
appellate court, stating a rule of law necessary to the decision of the case,
conclusively establishes that rule and makes it determinative of the rights of
the same parties in any subsequent retrial or appeal in the same case.’ ”
(Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301, italics added.)
The doctrine is not applicable where different parties are involved, as here.
We do not consider the unpublished Santa Barbara case.
24
than a trip and fall. It points to the differing factors that may have
contributed to the accident.
In Kaney, a premises liability case, the Court of Appeal reversed a
summary judgment, holding the trial court erred by ruling a slip and fall
plaintiff’s inability to remember the fall meant she lacked nonspeculative
evidence of causation. (Kaney v. Custance, supra, 74 Cal.App.5th at p. 217;
see also id. at p. 204 [“Is a plaintiff barred as a matter of law from proving
causation in a slip and fall case if there were no witnesses to the fall and he
or she remembers being on stairs and then waking up in pain but does not
remember the fall itself? No. That is not the law in California”].) In Kaney,
the matter was one of common knowledge: whether the absence of a stairway
handrails, the size of risers, or both, caused the plaintiff to fall. (Id. at p.
217.) Thus, while the plaintiff had submitted a civil engineering expert’s
declaration explaining that the stairs were a substantial misstep hazard at
the time of the incident (id. at p. 209), she did not need expert testimony to
raise a triable issue as to causation. (Ibid.) Kaney discussed trip and fall
cases in which the plaintiffs could not remember their falls, observing that in
those cases, “the circumstantial evidence led to reasonable and probable
inferences that each fell from a height due to the absence of adequate
barriers that would have restrained them.” (Id. at pp. 219-220.) It concluded
that the same result followed in that case; that “a trier of fact could draw a
reasonable and probable inference in appellant’s favor that she fell while on
the stairs based on her testimony that she remembers being on the stairs and
waking up on the floor in pain” and “that [she] would not have fallen if,
among other things, she had a handrail to give her balance or give her
something to grab onto when stumbling.” (Id. at p. 220.)
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Kaney further rejected the defendant’s argument that it was just as
likely the plaintiff’s fall was caused by something other than defects
identified by plaintiff’s expert, concluding it “ignores [the expert’s]
explanation for how handrails prevent stumbles and falls.” (Kaney v.
Custance, supra, 74 Cal.App.5th at p. 220.) Such is the case here. City’s
argument (that “unlike in Kaney, here there is no undisputed piece of
circumstantial evidence like the missing handrail”) ignores the expert
testimony and other evidence from which a jury could reasonably infer
parked vehicles were present at the northwest corner of Canyon Crest Drive
at the time of the accident. In sum, these inferences create material issues
for the fact finder on whether the intersection’s dangerous conditions
contributed to the collision. We disagree that Vance’s evidence only raises a
possibility of causation or that it is speculative and conjectural.
VI. Design Immunity
As stated, though the parties briefed it below, the trial court did not
address the question of design immunity. Because it focuses solely on
causation, City does not argue on appeal it was entitled to judgment as a
matter of law with respect to that affirmative defense. Vance, however,
argued the issue extensively in her opening brief, giving City the opportunity
to address it.
“Design immunity is often raised on a motion for summary judgment or
nonsuit, thereby 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
26
undisputed.’ ” (Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 946,
quoting Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940.)10
“Discretionary approval ‘ “simply means approval in advance of
construction by the legislative body or officer exercising discretionary
authority.” ’ [Citation.] It is satisfied by showing the plan or design was
either (1) ‘approved in advance of the construction or improvement by the
legislative body of the public entity or by some other body or employee
exercising discretionary authority to give such approval’ or (2) ‘prepared in
conformity with standards previously so approved.’ [Citations.] If the
relevant facts are undisputed, the issue of discretionary approval may be
resolved as a matter of law.” (Kabat v. Department of Transportation, supra,
107 Cal.App.5th at pp. 661-662, quoting § 830.6, Hampton v. County of San
Diego, supra, 62 Cal.4th at p. 350 & Grenier v. City of Irwindale, supra, 57
Cal.App.4th at p. 940.)
“ ‘Discretionary approval need not be established with testimony of the
people who approved the project. Testimony about the entity’s discretionary
approval custom and practice can be proper even though the witness was not
10 The third element, whether there is substantial evidence of the
reasonableness of the plan or design’s approval, is a question of law for the
court, not a jury. (§ 830.6; Cornette, supra, 26 Cal.4th at p. 72.) As to this
element, the typical summary judgment standards do not apply. (Menges v.
Department of Transportation (2020) 59 Cal.App.5th 13, 21.) The trial or
appellate court must decide whether “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.” (§ 830.6; Cornette, at p. 72.) The court is “not concerned
with whether the evidence of reasonableness is undisputed; the statute
provides immunity when there is substantial evidence of reasonableness,
even if contradicted.” (Grenier v. City of Irwindale, supra, 57 Cal.App.4th at
p. 940.) Thus, a plaintiff’s expert’s disagreement does not create a triable
issue of material fact. (Menges, at p. 20.)
27
personally involved in the approval process.’ [Citations.] ‘A detailed plan,
drawn up by a competent engineering firm, and approved by [the public
entity’s] engineer in the exercise of his or her discretionary authority, is
persuasive evidence of the element of prior approval.’ ” (Kabat v. Department
of Transportation, supra, 107 Cal.App.5th at pp. 661-662.)
For purposes of design immunity, City’s traffic engineer Libring stated
he had “duly authorized” what he referred to as a “traffic improvement plan
(Work Order ID No. 2946)” and stated he was “duly authorized as City Traffic
Engineer for the City of Riverside to make any and all improvements in the
area of Canyon Crest Drive referenced in Work Order ID No. 2946.” He
stated, “[S]ubject to my discretion as a City Traffic Engineer employed by the
City of Riverside, in adopting the 2009 City[-]approved improvement plan to
Canyon Crest Drive set forth in Work Order ID No. 2946, it was my
determination that all of the actions I took in implementing said Word [sic]
Order, including the addition of parking stripes and reasonable parking
restrictions and allowing the location of the stop sign controlling the
intersection at Canyon Crest and Via Zapata to remain as it existed
previously, were appropriate and reasonable under the circumstances.” The
work order, approved and signed by Libring, references an “attached plan,”
(all appended to an attorney declaration as Exhibit Nos. J, K and L), which
appears to be a two-page color aerial view of Canyon Crest Drive and Via
Zapata with notations and yellow markings indicating, among other things,
where red curbs and white stripes were to be installed. None of the
documents appear to contain a stamp or seal.
In opposition, Vance’s expert Dunlap in his declaration averred that
“the document does not meet the requirements of an approved plan under the
California Business and Professions Code section 6735 . . . .” He quotes the
28
section, which requires for civil engineering plans with multiple sheets that
“the [civil engineer’s] signature, seal or stamp, and date of signing and
sealing or stamping shall appear on each sheet of the plans.” (See Bus. &
Prof. Code, § 6735, subd. (a).) Dunlop states “[n]either Work Order [No.]
2946 . . . [nor] the attached aerial view of Canyon Crest Drive . . . have the
required stamp or seal of a licensed civil engineer approving the document, or
the date of signing and sealing as requiring for it to be recognized as a valid
approved plan. There are no provisions under the code for the deviation or
omittance of these requirements.” He concludes that the document “is not an
approved plan.” Vance presented deposition testimony from senior City
traffic engineer Phillip Hermalex Nitollama, who testified about City’s
practices with regard to service requests and traffic engineering design. He
stated that for the most part, he handled the traffic engineering designs,
which were created either by a City employee or other contractor using a
computer aided design program, which is to scale and shows engineered
markings, and then is typically reviewed, signed, and electronically stamped.
We recognize at least one court has held noncompliance with particular
Business and Professions Code requirements (e.g., for a signed plan) does not
necessarily defeat design immunity, as section 830.6 does not dictate any
form or technical requirements to establish the necessary approval. (Bane v.
State of California (1989) 208 Cal.App.3d 860, 869, abrogated on other
grounds by Cornette, supra, 26 Cal.4th at p. 74, fn. 3.) But here, expert and
other testimony conflicts on the discretionary approval element, with Vance’s
evidence tending to show Libring’s approval was not of a legitimate or
sufficiently detailed plan or diagram. (Compare Laabs v. City of Victorville
(2008) 163 Cal.App.4th 1242, 1247-1248, 1263 [public entity engineer’s
review and approval of construction plans depicting vertical curve and
29
widening of road with “nexus . . . [to] adequacy or inadequacy of stopping
sight distance” established discretionary approval element as a matter of
law].) And City does not address design immunity on appeal.
We are not permitted to resolve the competing expert and other
testimony on summary judgment, but rather, resolve all evidentiary doubts
or conflicts in Vance’s favor. (Code Civ. Proc., § 437c; (Gonzalez v. Mathis,
supra, 12 Cal.5th at p. 39; Garrett v. Howmedica Osteonics Corp. (2013) 214
Cal.App.4th 173, 186-189 [trial court’s gatekeeping function in evaluating
expert testimony on summary judgment does not involve “choosing between
competing expert opinions”].) Doing so requires us to conclude that City was
not entitled to summary judgment on the basis of design immunity.
DISPOSITION
The summary judgment is reversed. Vance shall recover her costs on
appeal.
O’ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
30