The opinion
Filed 1/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
BETTY TANSAVATDI, B293670
Plaintiff and Appellant, (Los Angeles County
Super. Ct. Nos. BC633651/
v. BC652435)
CITY OF RANCHO PALOS
VERDES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert B. Broadbelt, Judge. Affirmed
in part, vacated in part, and remanded with directions.
Mardirossian & Associates, Garo Mardirossian and
Armen Akaragian; The Linde Law Firm, Douglas A. Linde
and Erica A. Gonzales; Esner, Chang & Boyer, Holly N.
Boyer and Shea S. Murphy for Plaintiff and Appellant.
Wesierski & Zurek, Frank J. D’Oro and David M.
Ferrante; Pollak, Vida & Barer, Daniel P. Barer and Anna L.
Birenbaum for Defendant and Respondent.
________________________________________
INTRODUCTION
In March 2016, appellant Betty Tansavatdi’s son,
Jonathan Tansavatdi, was riding his bicycle in the city of
Rancho Palos Verdes when he collided with a turning truck,
suffering fatal injuries.1 Appellant sued the city, alleging a
dangerous condition of public property under Government
Code section 835.2 According to appellant, the city had
created a dangerous condition by removing a bicycle lane
from the area of the accident, and had failed to warn of that
dangerous condition, leading to the accident and Jonathan’s
death.
Following discovery, the city moved for summary
judgment. Among other grounds, the city asserted it was
entitled to design immunity under section 830.6. Under this
provision, a public entity is immune from liability for
creating a dangerous condition if it shows that: (1) a plan or
1 Because Jonathan and appellant shared the same last
name, we refer to Jonathan by his first name.
2 Undesignated statutory references are to the Government
Code.
2
design caused the injury; (2) the plan or design had received
discretionary approval before construction; and (3)
substantial evidence supported the reasonableness of the
plan or design. The city relied on plans for a street
resurfacing project, which it claimed did not include a bicycle
lane at the site of the accident. The trial court granted the
city’s motion, concluding it had proved entitlement to design
immunity as a matter of law. The court did not address
appellant’s theory that the city was liable for failing to warn
of a dangerous condition.
Challenging the court’s ruling, appellant contends the
city failed to establish any of the elements of design
immunity. Alternatively, she claims her failure to warn
theory should survive the application of design immunity.
We conclude that design immunity shields the city from
liability for the absence of a bicycle lane. However, following
our Supreme Court’s binding precedent, we hold that even
where design immunity covers a dangerous condition, it does
not categorically preclude liability for failure to warn about
that dangerous condition. We therefore vacate the judgment
in part and remand to the trial court to consider appellant’s
failure to warn theory.
BACKGROUND
A. The Accident and Appellant’s Complaint
On the afternoon of March 8, 2016, Jonathan was
cycling in Rancho Palos Verdes, travelling south on
Hawthorne Boulevard, past Dupre Drive and toward Vallon
3
Drive. Although other portions of Hawthorne Boulevard
included a bicycle lane, the portion between Dupre and
Vallon did not. As Jonathan arrived at the intersection of
Hawthorne and Vallon, he intended to continue straight
through the right-turn lane but collided with a south-bound
semi-trailer truck that was turning right from Hawthorne to
Vallon. He was killed in the collision.
In March 2017, appellant filed this lawsuit against the
city and others, asserting a single cause of action for a
dangerous condition of public property under section 835.3
Appellant alleged that the city had both created a dangerous
condition (or allowed it to be created) and failed to warn of a
dangerous condition. The parties proceeded to discovery,
focusing primarily on appellant’s theory that the absence of
a bicycle lane at the site of the accident constituted a
dangerous condition and led to Jonathan’s death.
B. The City’s Motion for Summary Judgment
The city moved for summary judgment, arguing the
affirmative defense of design immunity under section 830.6
shielded it from liability for the absence of a bicycle lane.4 It
3 The other defendants are not pertinent to this appeal.
4 Section 830.6 provides: “Neither a public entity nor a
public employee is liable under this chapter for an injury caused
by the plan or design of a construction of, or an improvement to,
public property where such plan or design has been approved in
advance of the construction or improvement by the legislative
body of the public entity or by some other body or employee
(Fn. is continued on the next page.)
4
further claimed that such design immunity also precluded
liability for failure to warn of the allegedly dangerous
condition. Alternatively, the city contended that the
intersection was not dangerous, and that Jonathan had not
used the property with due care.
1. The 2009 Plans
In support of its claim for design immunity, the city
submitted plans for a 2009 street resurfacing project (2009
plans), which included the resurfacing and restriping of
Hawthorne Boulevard. Among other specifications, those
plans included directions to install specific striping details,
pavement markings, and signs. For certain portions of the
project, the 2009 plans directed the inclusion of “‘BIKE
LANE’ & ARROW” markings and the striping of continuous
lines to the left of those markings, as shown in the following
example:
exercising discretionary authority to give such approval . . . , if
the trial or appellate court determines that there is any
substantial evidence upon the basis of which (a) a reasonable
public employee could have adopted the plan or design . . . or (b) a
reasonable legislative body or other body or employee could have
approved the plan or design . . . .”
5
Those portions of the project were also to include the
following sign:
The plans also showed similar existing bicycle lane markings
for portions of the project that were not to be resurfaced.
Multiple segments of Hawthorne Boulevard were to
include these bicycle lane markings and signs under the
2009 plans. For the segment between Dupre Drive and
Vallon Drive, however, the plans neither directed the
inclusion of these elements nor showed any existing bicycle
lane markings or signs.5
5 This entire segment of Hawthorne Boulevard was to be
resurfaced under the 2009 plans.
6
The plans had been prepared by a private engineering
firm and submitted to the city for approval. The plans
showed that in June 2009, Jim Bell, the city’s Director of
Public Works at the time, signed each of the plans’ sheets in
a designated space reserved for the Director of Public Works
and captioned, “APPROVED.”6
2. Nicole Jules’s Deposition and Declaration
The city provided transcripts of the deposition of Nicole
Jules, a former city employee who started as a senior
engineer for the city in 2001, and later served as the city’s
Deputy Director of Public Works and Supervising Civil
Engineer. Jules testified that in 2009, the city had carried
out a resurfacing project that included Hawthorne
Boulevard. She explained that the project relied on federal
funding, and that the city was required to submit plans
signed by the city to secure that funding. At the time of her
deposition, Jules had only an unsigned copy of the 2009
plans before her. Jules testified that the city would have
had to approve the plans before construction began, but in
response to questioning, she confirmed that the produced
copy of the plans showed no approval by the city, as they
6 The city also submitted minutes of city council meetings
from July and August 2009. It asserted they showed that the city
council additionally approved the 2009 plans. As discussed
below, we conclude that Bell properly approved the plans for
purposes of design immunity. We therefore need not discuss the
minutes or decide their significance.
7
were unsigned. Jules stated, however, that the striping in
the plans matched the striping actually performed on the
road.
As to the absence of a bicycle lane, Jules testified there
had never been a bicycle lane on Hawthorne Boulevard
between Dupre and Vallon. She stated that in 2001, the city
decided against including a bicycle lane there, explaining
that the city wanted to retain on-street parking for the
benefit of an adjacent park, and that a bicycle lane “would
compromise” that parking.
Following her deposition, the city submitted a
declaration by Jules. In it, Jules stated that the city had
now produced the signed copy of the plans, bearing Bell’s
June 2009 signature. Jules noted that Bell was a licensed
engineer during his tenure as Director of Public Works for
the city. She explained that he had signed the plans “on
behalf of the City of Rancho Palos Verdes.” Regarding the
site of the accident and the portion of Hathorne Boulevard
preceding it, Jules opined that it met or exceeded all
applicable government standards, and that the 2009 plans,
including the absence of a bicycle lane, were reasonably
approved.
3. Rock Miller’s Declaration
The city also provided the declaration of Rock Miller, a
traffic engineering expert. Miller had reviewed the 2009
plans and opined that they were reasonable and in full
compliance with applicable guidelines. He described the
8
available collision data for the intersection of Hawthorne
Boulevard and Vallon Drive, which showed that Jonathan’s
accident was the only serious collision there from 2006 to
2017. Miller opined that the intersection had an “extremely
good” collision record, and that the road was safe when used
with due care.
As to the inclusion of a bicycle lane, Miller reported
that under applicable guidelines, bicycle lane markings
should stop at least 100 feet before the beginning of a right-
turn lane. He opined that a reasonable engineer would have
approved the plans, including the absence of a bicycle lane at
the relevant segment of the road.
C. Appellant’s Opposition
In opposing the city’s motion for summary judgment,
appellant argued, inter alia, that the city had failed to
establish the elements of design immunity as a matter of
law. Among other things, appellant contended the city had
failed to establish that the 2009 plans had been approved by
an authorized person because it had not shown that Bell had
the authority to approve them. She further contended there
was no substantial evidence showing that the plans were
reasonable. Appellant additionally argued that the
causation element of the design immunity was unmet, at
9
least as it related to her failure to warn theory, because the
city’s failure to warn was unrelated to any plan or design.7
With her opposition, appellant submitted a declaration
by Edward Ruzak, a traffic engineering expert. Ruzak
opined that the intersection constituted a dangerous
condition due to the absence of a bicycle lane that would
direct riders to the left of the right-turn lane. He testified
that the relevant segment of Hawthorne Boulevard was
heavily used by bicyclists, and that the risk of serious
collisions was significant, given the road’s design, including
a steep downgrade that caused bicyclists to travel at high
speeds. Ruzak faulted the city for failing to provide
“warnings or positive guidance . . . regarding the proper and
safe use of [the road]” in the absence of a bicycle lane.
Appellant also submitted the transcript of Rock
Miller’s deposition. There, Miller testified that bicycle lanes
are rarely removed, and he would not recommend removal of
a bicycle lane unless it was obvious that more important
needs warranted that action.8 In response to questioning
about the procedure for removal of a bicycle lane, Miller
7 Appellant also asserted a changed-conditions exception to
design immunity, but she does not renew this argument on
appeal.
8 Appellant submitted evidence seeking to establish that
there had previously been a bicycle lane on the relevant portion
of Hawthorne Boulevard, but that the city had removed it,
contrary to Jules’s testimony that there had never been a bicycle
lane there. Although the parties continue to debate this point on
appeal, we need not address it to resolve the dispositive issues.
10
stated that he could not say what the standard procedure
would be, but that in most places, the city staff would have
the authority to determine how a street would be striped.
When presented with additional questions about
hypothetical bicycle lane removals, Miller replied that a city
council would need to make that decision.
D. The City’s Reply
In its reply, the city reasserted the positions it had
advanced in its motion. As to appellant’s failure to warn
theory, the city further argued that the absence of a bicycle
lane required no warning, and that in any case, signage on
the road provided adequate warning.9
E. The Trial Court’s Ruling
The trial court granted the city’s motion for summary
judgment, concluding the city had shown entitlement to
design immunity as a matter of law. The court stated that
9 The city also submitted additional evidence, including a
supplemental declaration by Jules. Jules reiterated her prior
testimony that there had never been a bicycle lane on the
relevant portion of Hawthorne Boulevard, and addressed the
difficult process that removing a bicycle lane would have
required, including the need for city council approval. Citing this
testimony, the city argued the lack of a “paper trail” concerning
an alleged removal of a bicycle lane on Hawthorne Boulevard
showed there had never been a bicycle lane there. However, both
parties represent on appeal that the trial court later excluded the
city’s newly submitted evidence, including Jules’s supplemental
declaration.
11
the allegations in appellant’s complaint established a causal
relationship between a design or plan and the accident. It
further concluded the city had shown that Bell had approved
the 2009 plans and had the authority to do so. Finally, the
court found substantial evidence supported the
reasonableness of those plans.
The trial court did not address appellant’s failure to
warn theory in granting the city’s motion.10 Because it
granted the city’s motion based on design immunity, it did
not consider the city’s alternative contentions: that the road
was not dangerous and that Jonathan had not used the
property with due care.11 Appellant timely appealed,
arguing that design immunity does not protect the
challenged absence of a bicycle lane and, alternatively, that
her failure to warn theory should survive the application of
design immunity.
10 The court briefly mentioned appellant’s allegation that the
city had failed to warn of a dangerous condition only in rejecting
her assertion that the changed-conditions exception to design
immunity applied.
11 Because we conclude the city was entitled to design
immunity from liability for the absence of a bicycle lane, we
likewise do not consider these additional contentions. On
remand, the trial court may consider these issues as necessary to
assess appellant’s failure to warn theory.
12
DISCUSSION
A. Summary Judgment Principles
“Summary judgment is appropriate only where ‘no
triable issue of material fact exists and the moving party is
entitled to judgment as a matter of law.’” (Regents of
University of California v. Superior Court (2018) 4 Cal.5th
607, 618.) The party moving for summary judgment bears
the burden of persuasion that there is no triable issue of
material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850 (Aguilar).) Where a defendant moves for
summary judgment based on an affirmative defense, the
defendant must show that undisputed facts support each
element of the affirmative defense. (Anderson v. Metalclad
Insulation Corp. (1999) 72 Cal.App.4th 284, 289.)
The party seeking summary judgment bears an initial
burden of production to make a prima facie showing that no
triable issue of material fact exists. (Aguilar, supra, 25
Cal.4th at 845.) If that party carries this burden of
production, the opposing party then has the burden of
production to make a prima facie showing that a triable
issue of material fact exists. (Ibid.)
“‘“We review the trial court’s decision de novo,
considering all the evidence set forth in the moving and
opposing papers except that to which objections were made
and sustained.”’” (Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1037.) We liberally construe the evidence in
support of the party opposing summary judgment and
13
resolve evidentiary doubts in its favor. (Hampton v. County
of San Diego (2015) 62 Cal.4th 340, 347 (Hampton).)
B. Design Immunity for Dangerous Condition of Public
Property
Section 835 provides that a public entity may be liable
under certain circumstances for injuries caused by a
dangerous condition of its property. (§ 835.) “However,
under section 830.6, the public entity may escape such
liability by raising the affirmative defense of ‘design
immunity.’” (Cornette v. Department of Transportation
(2001) 26 Cal.4th 63, 69 (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.” (Ibid.)
A public entity raising this defense must establish
three elements: (1) a causal relationship between a 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, supra, 26 Cal.4th at 69.) The first two
elements -- causation and discretionary approval -- involve
factual questions to be resolved by a jury, unless the facts
are undisputed. (Alvis v. County of Ventura (2009) 178
Cal.App.4th 536, 550.) The third element -- the existence of
substantial evidence supporting the reasonableness of the
14
plan or design -- is a legal matter for the court to decide.
(Cornette, supra, at 66.) Appellant claims the city has failed
to establish any of the elements of design immunity. We
address each element in turn.
1. Causal Relationship
Design immunity applies only to injuries “caused by
the plan or design of a construction of, or an improvement to,
public property . . . .” (§ 830.6.) In other words, this defense
does not immunize negligence unrelated to a design or plan.
(See ibid.) Appellant contends the city failed to establish
that the absence of a bicycle lane was the result of a plan or
design, rather than inadvertence. She claims the city
therefore failed to show that a plan or design caused the
accident. As to the 2009 plans, appellant asserts they were
entirely “silent” about the inclusion or exclusion of bicycle
lanes. She is mistaken.
The 2009 plans directed the inclusion of “‘BIKE LANE’
& ARROW” markings, the striping of continuous lines
consistent with bicycle lane striping to the left of those
markings, and bicycle lane signs on multiple segments of
Hawthorne Boulevard. They included no such markings or
signs, however, on the segment between Vallon Drive and
Dupre Drive. Insisting that the plans were silent on the
subject of bicycle lanes, appellant fails to address this
disparity and offers no argument that it was insufficient to
establish a causal relationship between the plans and the
omission of a bicycle lane at the site of the accident -- an
15
omission she alleges caused the accident.12 We therefore
conclude the city has carried its burden as to the first
element of design immunity.
2. Discretionary Approval
To prove discretionary approval, a public entity “must
show that the design was approved ‘in advance’ of the
construction ‘by the legislative body of the public entity or by
some other body or employee exercising discretionary
authority to give such approval . . . .’” (Martinez v. County of
Ventura (2014) 225 Cal.App.4th 364, 369 (Martinez), quoting
§ 830.6.) The entity must prove that the person or entity
12 For the first time at oral argument, appellant asserted that
for a certain segment of a road included in the project, the plans
depicted a bicycle lane sign but no “‘BIKE LANE’ & ARROW”
markings. Appellant argued this showed that the absence of
these markings in the plans for the relevant segment of
Hawthorne Boulevard did not establish the intended absence of a
bicycle lane there. Initially, appellant has forfeited this
contention by failing to raise it in her briefs. (See Haight
Ashbury Free Clinics, Inc. v. Happening House Ventures (2010)
184 Cal.App.4th 1539, 1554, fn. 9 [“We do not consider arguments
that are raised for the first time at oral argument”].) Moreover,
she is mistaken. The plans show that the segment appellant
references, most of which was not to be resurfaced, included
existing bicycle lane markings and striping, in addition to bicycle
lane signs. As noted, the plans showed no existing bicycle lane
elements for the relevant portion of Hawthorne Boulevard, which
was to be fully resurfaced.
16
who made the relevant decision is vested with the authority
to make it. (Martinez, supra, at 373.)
A public entity may prove the decisionmaker’s
authority to approve a plan or design by pointing to
governing law. (See, e.g., Thomson v. City of Glendale (1976)
61 Cal.App.3d 378, 384 [examining city’s charter and
municipal code in determining that employee had authority
to approve construction plans].) Alternatively, the entity
may provide testimony by the decisionmaker or another
person familiar with the entity’s approval process. (See, e.g.,
Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 936,
947 (Gonzales) [discretionary approval shown as matter of
law where city engineer testified he had authority to decide
on relevant component of plans]; Dobbs v. City of Los Angeles
(2019) 41 Cal.App.5th 159, 161 (Dobbs) [“Testimony about
the entity’s discretionary approval custom and practice can
be proper even though the witness was not personally
involved in the approval process”; declaration by person with
14 years of experience in agency was “adequate”].) In
addition to such testimony, the approved plans themselves
may constitute evidence of the necessary discretionary
approval. (See Laabs v. City of Victorville (2008) 163
Cal.App.4th 1242, 1263 (Laabs) [city established
discretionary approval where city engineer declared another
city engineer had approved plans, and where plans
themselves showed they had been signed and approved by
second engineer in his official capacity], citing Evid. Code,
§ 1453 [“A signature is presumed to be genuine and
17
authorized if it purports to be the signature, affixed in his
official capacity, of: [¶] . . . [¶] (b) A public employee of any
public entity in the United States”]; Alvarez v. State of
California (1999) 79 Cal.App.4th 720, 728-729, 733,
abrogated on another ground by Cornette, supra, 26 Cal.4th
63 [relying on Evid. Code, § 1453 to conclude signed plans
themselves provided evidence of necessary discretionary
approval; plans showed design was approved by officials
whose stated capacities indicated their discretionary
approval authority].)
The city’s evidence was sufficient to make a prima facie
showing that the 2009 plans had received discretionary
approval as a matter of law. A private engineering firm
prepared the plans and submitted them to the city for
approval. It is undisputed that Jim Bell, the city’s Director
of Public Works, signed the plans, and the plans themselves
indicate that Bell “APPROVED” them in his official capacity.
At the deposition of Nicole Jules, formerly the Deputy
Director of Public Works and Supervising Civil Engineer for
the city, Jules had before her only an unsigned copy of the
plans. She then testified that the city would have had to
approve the plans before construction began, but confirmed
that the produced copy of the plans bore no signature
constituting approval by the city. However, following Jules’s
deposition, the city located the signed plans. Jules testified
in her declaration that Bell was a licensed engineer during
his tenure as Director of Public Works, and explained that
Bell had signed the plans “on behalf of the City of Rancho
18
Palos Verdes.” In other words, according to Jules, Bell’s
signature constituted city approval for the plans, which she
had agreed was absent when reviewing the unsigned copy of
the plans. As a former senior employee at the city’s
Department of Public Works, Jules was competent to testify
about the city’s approval process and Bell’s authority. (See,
e.g., Dobbs, supra, 41 Cal.App.5th at 161.) The plans
showing Bell’s approval in his capacity as Director of Public
Works, together with Jules’s unrefuted testimony about the
significance of his signature, satisfied the city’s burden of
production as to the discretionary approval element.13 (See
Gonzales, supra, 6 Cal.App.5th at 936, 947; Laabs, supra,
163 Cal.App.4th at 1263.)
Appellant faults Jules’s declaration for failing to
specify the timing of the plans’ approval and the
construction of the project. Yet the plans themselves show
they were approved in June 2009, and Jules repeats this
information in her declaration. And at Jules’s deposition,
she testified that the resurfacing project was done in 2009,
that it was performed using federal funding, and that plans
signed by the city were required to secure that funding. This
13 Because we conclude that Bell’s approval of the plans was
sufficient, we need not address the city council’s approval of the
2009 plans. We note, however, that in addition to the city council
minutes of July and August, the city presented minutes of
September 2009, showing the council’s approval of the 2009
plans. The court excluded the September minutes as they were
submitted with the city’s reply.
19
evidence sufficed to show the plans received discretionary
approval before the construction.14
Appellant cites Martinez, supra, 225 Cal.App.4th 364
and Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th
1451 (Castro) in support of her contention that the city’s
evidence was insufficient. Each of these cases is
distinguishable.
In Martinez, a statute vested discretionary authority to
approve the relevant design -- a drain system -- in the county
road commissioner, who had not approved the design.
(Martinez, supra, 225 Cal.App.4th at 371.) Instead, the
county road maintenance engineer allegedly approved the
design, but there was no evidence the road commissioner
had delegated his authority to that person or was even
empowered to do so. (Id. at 372.) And the alleged
decisionmaker’s testimony that he had approved the design
was “equivocal at best,” stating only that he “‘was involved
probably with the approval of the installation, yes, sir.’”
(Ibid.) Unlike in Martinez, there is no evidence that
authority to approve the relevant plans here was vested in
14 Appellant additionally faults the city for failing to establish
the approval of “‘as built’” plans, meaning plans showing the
condition of the road after completion of the project. There is no
authority for this alleged requirement. Hampton, supra, 62
Cal.4th at 346, 358, cited by appellant, involved as-built plans,
but in no way suggests they were required. In any event, Jules
testified at her deposition that the 2009 plans matched the actual
condition of the road.
20
anyone other than Bell, and both Jules’s declaration and the
plans themselves show that Bell approved them.
In Castro, the alleged dangerous condition -- a
pedestrian warning beacon -- was an “‘add-on[],’” not part of
any plan or design by the defendant city. (Castro, supra, 239
Cal.App.4th at 1453-1454.) The court concluded the
municipal code did not authorize the decisionmaker to
approve a design for the add-on, and rejected declarations by
current and former city employees that the decisionmaker
was authorized to approve a design for it. (Id. at 1456.) The
court explained that design immunity requires “an actual
plan or design, i.e., something other than an oral ‘after the
fact’ statement that ‘I had authority and I approved my own
safety idea.’” (Id. at 1457.) But unlike the city in Castro, the
city of Rancho Palos Verdes has furnished actual plans
containing the disputed feature (the 2009 plans),
accompanied by the decisionmaker’s contemporaneous
approval, rather than “an oral ‘after the fact’ statement.”
Appellant offers no meaningful evidence to counter the
city’s showing. She points to the deposition of Rock Miller,
the city’s traffic engineering expert.15 In his deposition,
Miller alternately stated in response to hypotheticals that a
city’s staff would have the authority to decide whether to
include a bicycle lane or that a city’s council would need to
make that decision. Miller did not testify about the
15 Appellant inaccurately describes Miller as “an engineer
with the City.”
21
procedures followed by the city of Rancho Palos Verdes, and
nothing in the record suggests he was even competent to
testify about that city’s procedures. In short, the trial court
did not err in finding the city’s evidence established Bell’s
discretionary approval of the 2009 plans as a matter of law.16
3. Reasonableness
Under the third element of design immunity, the court
must determine if “there is any substantial evidence upon
the basis of which (a) a reasonable public employee could
have adopted the plan or design . . . or (b) a reasonable
legislative body or other body or employee could have
approved the plan or design . . . .” (§ 830.6.) The evidence
need not be undisputed: the statute provides immunity
when there is substantial evidence supporting the decision,
even if it is contradicted. (Gonzales, supra, 6 Cal.App.5th at
946.) “The public entity must be granted immunity as long
as reasonable minds can differ concerning whether a design
should have been approved; ‘“[t]he statute does not require
that property be perfectly designed, only that it be given a
16 Appellant attempts to rely on the city’s reply below, which
in turn relied on Jules’s supplemental declaration to state that
the removal of a bicycle lane would have required city council
approval. This argument, however, rests on evidence that was
excluded and thus is not properly before us. Appellant makes no
attempt to show that the city’s statement below constituted a
judicial admission or warrants application of judicial estoppel.
Finally, we observe that appellant made no attempt to raise any
contention in this regard before the trial court.
22
design which is reasonable under the circumstances.”’”
(Ibid.)
“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 plaintiff’s
expert may disagree does not create a triable issue of fact.”
(Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 941
(Grenier).)
The city has provided substantial evidence supporting
the 2009 plans’ reasonableness. Miller, the city’s traffic
engineering expert, opined that the plans were reasonable
and in full compliance with applicable guidelines. He
explained that the intersection of Hawthorne Boulevard and
Vallon Drive had an “extremely good” collision record, and
opined that the road was safe when used with due care.
According to Miller, applicable guidelines provided that
bicycle lane markings should stop at least 100 feet before the
beginning of a right-turn lane. This suggested that the
guidelines did not support the inclusion of a bicycle lane at
the intersection itself. Miller opined that a reasonable
engineer would have approved the plans, including the
absence of a bicycle lane at the relevant segment of the road.
Jules, a former senior engineer for the city, testified
similarly in her declaration. She opined that the relevant
segment of Hawthorne Boulevard met or exceeded all
applicable government standards, and that the plans for the
23
road, including the absence of a bicycle lane, were
reasonably approved. At her deposition, Jules relayed that
the city had previously decided against including a bicycle
lane on the relevant stretch of Hawthorne Boulevard
because the city wanted to retain on-street parking for the
adjacent park, and this was incompatible with the inclusion
of a bicycle lane. Miller’s and Jules’s expert opinions amply
supported the reasonableness of the 2009 plans. (See
Grenier, supra, 57 Cal.App.4th at 941; Ramirez v. City of
Redondo Beach (1987) 192 Cal.App.3d 515, 525 [expert
witness’s testimony that roadway was not dangerous
satisfied reasonableness element, regardless of conflicting
expert evidence].)
Appellant argues the omission of a bicycle lane was
nevertheless wholly unreasonable: she asserts that an
intersection on a road heavily used by bicyclists necessarily
presents a threat, and contends that the city could easily
have included a bicycle lane just at the intersection, thereby
preserving the availability of on-street parking before the
intersection. Appellant’s argument amounts to no more than
disagreement with the city’s experts, who opined that the
design of the intersection was reasonable even without a
bicycle lane. This disagreement, supported as it may be by
appellant’s own experts, does not defeat the city’s evidence.
(See Gonzales, supra, 6 Cal.App.5th at 946.) Moreover,
appellant cites no evidence that including a bicycle lane just
at the intersection would have been feasible or safe. Finally,
even assuming appellant’s proposed design would have been
24
preferable to that of the 2009 plans, this would show only
that the 2009 plans were not perfect; it would not negate the
substantial evidence that those plans were reasonable. (See
ibid.)
Appellant claims that the lack of evidence of any
deliberative process or analysis by the city concerning a
bicycle lane before approving the 2009 plans defeats any
claim of reasonableness. We disagree. It is true that the
deliberative process may be relevant to the reasonableness
inquiry. (See Hampton, supra, 62 Cal.4th at 343 [rejecting
contention that discretionary approval element involves
whether decisionmaker was aware of design standards; “the
adequacy of the deliberative process . . . may be considered
in connection with the court’s determination whether there
is substantial evidence that the design was reasonable”];
Rodriguez v. Department of Transportation (2018) 21
Cal.App.5th 947, 960 [“In view of Hampton, whether an
omitted design feature is a ‘conscious design choice’ is
relevant, not to whether discretionary approval element is
satisfied, but to whether the design was reasonable”].) For
instance, evidence that an approving engineer never
considered the challenged design feature would cut against
the inference that mere approval of the design by a
competent professional establishes its reasonableness. (See
Grenier, supra, 57 Cal.App.4th at 941 [approval by
competent professional can itself show reasonableness].)
But neither the statute nor any precedent suggests that
25
affirmative evidence of a deliberative process focused on the
disputed feature is a prerequisite to reasonableness.
By its terms, section 830.6 does not concern whether
the actual decisionmakers reasonably adopted the
challenged design and does not ask whether they had
substantial evidence of reasonableness before them; instead,
the statute directs a court to determine if “there is any
substantial evidence,” i.e. evidence before the court, on
which “a reasonable [decisionmaker] could have” made the
same decision. (Ibid., italics added.) The statute thus does
not require evidence of the actual decisionmakers’
considerations.
Additionally, while appellant cites Hampton in support
of her argument, that case undercuts her position. There, in
rejecting the contention that the discretionary approval
element requires a decisionmaker to be aware of applicable
design standards, our Supreme Court noted the practical
problems a contrary approach would create: “Although
objective proof of the fact of approval by an employee with
authority to approve the plan may be readily available,
evidence of the standards actually considered by the decision
makers, as well as the reasoning and motivation of those
employees, will be much more scarce with the passage of
time. Plaintiffs’ interpretation could produce the anomaly of
different immunity outcomes for identical designs depending
simply upon the record-keeping ability of the public entities
involved, or the availability of employees who are able to
remember the decisionmaking process of the persons
26
involved -- a process that may have occurred long before the
lawsuit.” (Hampton, supra, 62 Cal.4th at 351.) Appellant’s
approach -- requiring affirmative evidence of an adequate
deliberative process as part of the reasonableness inquiry --
would create the very same problems our Supreme Court
warned about in Hampton. In short, the city was not
required to show that it expressly considered including a
bicycle lane on the relevant stretch of Hawthorne Boulevard.
The city’s evidence that the 2009 plans were reasonable
satisfied the third element of design immunity, and it was
therefore entitled to this defense.
C. Failure to Warn
In addition to her theory that the city created a
dangerous condition at the site of the accident, appellant
alleged in her complaint that the city negligently failed to
warn of the dangerous condition. She further asserted that
theory in opposing the city’s motion for summary judgment.
As appellant notes, the trial court did not address her failure
to warn theory in granting the city’s motion.
On appeal, appellant argues that even if design
immunity protects the city from liability for the omission of a
bicycle lane, the city may still be liable for failing to warn of
that dangerous condition. She claims that the absence of a
bicycle lane at the area of the accident constituted a
27
concealed trap for which a warning was necessary.17 We
agree that design immunity does not, as a matter of law,
preclude liability under a theory of failure to warn of a
dangerous condition.
In Cameron v. State of California (1972) 7 Cal.3d 318,
327 (Cameron), our Supreme Court held that a public entity
may be held liable for failure to warn of a concealed
dangerous condition even if that dangerous condition was
covered by design immunity. There, the plaintiffs were
injured in a car accident when the driver lost control
negotiating an “S” curve constructed with inconsistent
superelevation. (Id. at 322-323.) At trial, the state obtained
a judgment of nonsuit based on design immunity. (Id. at
322.) Our Supreme Court reversed, concluding that design
immunity was inapplicable because the state had failed to
prove that the inconsistent superelevation was part of a
pre-approved design for the road. (Id. at 326.)
To provide guidance to the trial court on remand, the
Cameron court considered a second contention by the
plaintiffs. (Cameron, supra, 7 Cal.3d at 326-327.) The
plaintiffs alleged that the state was negligent in failing to
warn of the improper superelevation, that this negligence
was “a concurrent cause of their injuries,” and that the
failure to warn “was not the result of any design or plan
which would confer immunity under section 830.6 . . . .” (Id.
17 It is unclear precisely what kind of warning appellant
claims the city should have provided.
28
at 327.) They contended that even if design immunity were
eventually found to be applicable as to the uneven
superelevation, it should not immunize the state for its
negligence in failing to warn of that dangerous condition.
(Id. at 326-327.) Our Supreme Court agreed: “where the
state is immune from liability for injuries caused by a
dangerous condition of its property because the dangerous
condition was created as a result of a plan or design which
conferred immunity under section 830.6, the state may
nevertheless be liable for failure to warn of this dangerous
condition where the failure to warn is negligent and is an
independent, separate, concurring cause of the accident.”
(Id. at 329.)
The city cites Weinstein v. Department of
Transportation (2006) 139 Cal.App.4th 52 (Weinstein) for the
proposition that that an entity entitled to design immunity
for a dangerous condition of its property may not be held
liable for failing to warn of that dangerous condition. The
Weinstein court found Cameron distinguishable, stating that
Cameron “involved the failure to warn of a hidden dangerous
condition that was not part of the approved design of the
highway,” whereas the plaintiffs in Weinstein claimed the
defendant “was obligated to warn of conditions that were
part of the approved design.” (Weinstein, supra, at 61.) This
analysis is mistaken. It is true that Cameron, which
stemmed from a judgment of nonsuit, concluded the state
had failed to show the dangerous condition was part of the
approved design. (Cameron, supra, 7 Cal.3d at 322, 326.)
29
But, foreseeing the possibility that the state would succeed
in establishing design immunity on remand, our Supreme
Court proceeded to consider the plaintiffs’ failure to warn
theory, in order to guide the trial court. (Id. at 326-327.) As
described, the court concluded that design immunity for a
dangerous condition would not necessarily shield the state
from liability for a failure to warn of the same dangerous
condition. (Id. at 329.)
Thus, under Cameron, the city’s entitlement to design
immunity for its failure to include a bicycle lane at the site of
Jonathan’s accident does not, as a matter of law, necessarily
preclude its liability under a theory of failure to warn.18
Because it appears the trial court did not consider
appellant’s failure to warn theory, we deem it advisable to
allow the trial court to consider the failure to warn theory in
the first instance.
18 Nothing in Cameron, however, suggests that design
immunity cannot shield a failure to warn that is itself caused by
a qualifying design under section 830.6. Indeed, as noted, the
plaintiffs there alleged that the failure to warn “was not the
result of any design or plan which would confer immunity under
section 830.6 . . . .” (Cameron, supra, 7 Cal.3d at 327.) Thus,
appellant may not assert that the absence of a bicycle lane itself
constituted the failure to warn. As discussed above, design
immunity shields the city’s decision not to include a bicycle lane
at the site of the accident.
30
DISPOSITION
The judgment is affirmed in part and vacated in part,
and the matter is remanded to the trial court to consider
whether summary judgment is appropriate as to appellant’s
failure to warn theory. The court may, in its discretion,
allow additional briefing and evidence on any issue related
to the viability of this theory. Each side shall bear its own
costs on appeal.
CERTIFIED FOR PUBLICATION
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
31