The opinion
Filed 10/16/23 Lin v. State of Cal. ex. rel. Dept. of Transportation CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
LIN LIN et al., 2d Civ. No. B322677
(Super. Ct. No. 21CV00216)
Plaintiffs and Appellants, (Santa Barbara County)
v.
STATE OF CALIFORNIA ex
rel. DEPARTMENT OF
TRANSPORTATION,
Defendant and Respondent.
Plaintiffs Lin Lin and Levi Liu appeal the granting of a
summary judgment motion filed by defendant State of California
ex rel. Department of Transportation (Caltrans) on the plaintiffs’
action for damages alleging a dangerous condition on a state
highway. We conclude, among other things, that: 1) the trial
court properly limited the issues for summary judgment to the
facts pled in the first amended complaint; 2) the court did not
abuse its discretion by denying plaintiffs’ request to file a second
amended pleading; 3) Caltrans proved that it has design
immunity; 4) the burden shifted to plaintiffs to show the loss of
design immunity, and 4) plaintiffs did not meet their burden. We
affirm.
FACTS
Lin Lin and Levi Liu (collectively Lin) are the surviving
heirs of decedent Michael Liu. Michael Liu died during a traffic
collision on June 5, 2020, on State Highway 154 (highway 154).
In the first amended complaint, Lin alleged defendant Oscar
Pereyra was headed southbound on highway 154. Pereyra
approached a curve, lost control of his vehicle, crossed over the
center of the roadway, collided with the driver’s side of Michael
Liu’s vehicle, killing him. He crossed over two sets of double
yellow lines and he was charged with vehicular manslaughter.
Lin alleged Caltrans was negligent by designing the roadway in a
dangerous condition by failing to construct a physical center
concrete barrier at the location of the accident to prevent center
line crossover accidents.
During the five-year period prior to the accident, 25 million
vehicles travelled within a one-mile area that included the
accident site, and there were four similar cross centerline
collisions. Caltrans’s expert Nevin Q. Sams determined the
accident rate for that period for similar median crossover
accidents was 0.000016 percent.
In a traffic collision report, the California Highway Patrol
(CHP) determined that the sole cause of the accident was Pereyra
driving while intoxicated. The CHP said, “Had Mr. Pereyra not
been driving his vehicle while under the influence, the collision
would not have occurred.”
Caltrans filed a motion for summary judgment claiming it
had design immunity from liability. The trial court granted
2.
summary judgment. It found Caltrans met its burden to show it
had design immunity. The burden shifted to Lin to show
Caltrans lost its immunity, but Lin did not meet that burden.
DISCUSSION
Summary Judgment
“Summary judgment provides courts with ‘a mechanism to
cut through the parties’ pleadings in order to determine whether,
despite their allegations, trial is in fact necessary to resolve their
dispute.’ ” (San Jose Neurospine v. Aetna Health of California,
Inc. (2020) 45 Cal.App.5th 953, 957.) “A defendant may obtain
summary judgment by showing one or more elements of
plaintiff’s cause of action is missing or that there is a complete
defense to the cause of action.” (Ibid.) On appeal from a
summary judgment, we make a de novo review of the correctness
of the trial court’s ruling to decide whether there are any triable
issues of fact. (Id. at p. 958.) We also consider whether the trial
court erred on issues of law in making its decision on summary
judgment.
The Trial Court’s Decision to Limit the Issues
Lin contends the trial court erred by deciding to limit the
issues for summary judgment to the facts pled in the first
amended complaint.
In the first amended complaint, Lin alleged Caltrans was
negligent and created a dangerous condition by not constructing
a “physical barrier” to separate the traffic lanes. But later in
opposition to the summary judgment motion, Lin raised
additional claims of negligence, including: 1) there was a lack of
warning signs; 2) there was reduced pavement friction; 3) the
pavement was excessively slippery when wet; and 4) Caltrans did
not attempt to provide warning signs until after the accident.
3.
The trial court did not err in limiting the issues for
summary judgment to the facts pled in the first amended
complaint. “ ‘The pleadings delimit the issues to be considered on
a motion for summary judgment.’ ” (Laabs v. City of Victorville
(2008) 163 Cal.App.4th 1242, 1253.) “Thus, a ‘defendant moving
for summary judgment need address only the issues raised by the
complaint; the plaintiff cannot bring up new, unpleaded issues in
his or her opposing papers.’ ” (Ibid., italics added; Government
Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95,
98, fn. 4; Mars v. Wedbush Morgan Securities, Inc. (1991) 231
Cal.App.3d 1608, 1614 [summary judgment “opposing papers
may not create issues outside of the pleadings”].) Consequently,
the court properly focused on Caltrans’s liability for failing to
build a physical concrete barrier between traffic lanes.
Denying Lin’s Request to File a Second Amended Complaint
The trial court filed its tentative decision granting
summary judgment to Caltrans. At the hearing on July 27, 2022,
Lin’s counsel said, “[T]o the extent the Court is inclined to stick
with the tentative ruling in respect to the scope of the pleadings,
the Plaintiffs today are here to request leave from the Court to
file a second amended complaint . . . .” The court denied the
request. It said the request was “too late.”
A trial court’s decision denying leave to amend is reviewed
for abuse of discretion. (Leader v. Health Industries of America,
Inc. (2001) 89 Cal.App.4th 603, 612.) It is Lin’s burden to make a
sufficient showing on appeal to show an abuse of discretion.
(Ibid.) “[A]s a matter of policy ‘[t]he discretion of the trial court
should be upheld unless clearly abused.’ ” (Roemer v. Retail
Credit Co. (1975) 44 Cal.App.3d 926, 939.)
4.
Lin cites Laabs v. City of Victorville, supra, 163
Cal.App.4th at page 1257, where the court said, “[I]f a plaintiff
wishes to introduce issues not encompassed in the original
pleadings, the plaintiff must seek leave to amend the complaint
at or prior to the hearing on the motion for summary judgment.”
(Italics added.) Lin claims her request was timely. She also cites
Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th
1059, 1067, where the court ruled a request to amend should
have been granted. But these cases are distinguishable. The
brief dicta in Laabs merely mention the options a plaintiff may
attempt to use. The dicta do not discuss, address, or in any way
limit the trial court’s well established discretion to deny a motion
to amend. (Roemer v. Retail Credit Co., supra, 44 Cal.App.3d at
p. 939.)
In Kirby, the plaintiff filed an “imperfectly pleaded”
complaint. (Kirby v. Albert D. Seeno Construction Co., supra, 11
Cal.App.4th at p. 1067.) Here, by contrast, Lin was seeking to
add issues that were “not pleaded.” (See Melican v. Regents of
University of California (2007) 151 Cal.App.4th 168, 176.) Cases
such as the current one do not fall within the Kirby exception
that involved a summary judgment motion that was tantamount
to a motion for judgment on the pleadings. The request to amend
here involves issues of delay, fairness to the defendant,
compliance with the California Rules of Court, and the adequacy
of the record on appeal.
Trial courts properly deny requests to amend complaints
where the requests are untimely or unreasonably delayed. (Dos
Pueblos Ranch & Improvement Co. v. Ellis (1937) 8 Cal.2d 617,
622; Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th
1263, 1280; Atkinson v Elk Corp. (2003) 109 Cal.App.4th 739,
5.
759; Roemer v. Retail Credit Co., supra, 44 Cal.App.3d at p. 940.)
“[E]ven if a good amendment is proposed in proper form,
unwarranted delay in presenting it may–of itself–be a valid reason
for denial.” (Roemer, at p. 940, italics added.)
Here the trial court did not abuse its discretion by denying
Lin’s request to file a second amended complaint to add
additional negligence grounds against Caltrans at this late stage
of the proceedings. It could reasonably consider such factors as
the history of this case, the stage of the case when the request to
amend was made, Lin’s earlier opportunity to file a first amended
complaint, when the new grounds should have been known to
Lin, and the failure of Lin to allege those new grounds when she
filed her first amended complaint. (Leader v. Health Industries of
America, Inc. (2001) 89 Cal.App.4th 603, 613.)
The trial court said it had “afforded plaintiffs the
opportunity to amend their original complaint to state all
conditions they allege constitute a dangerous condition of the
subject roadway.” (Italics added.) “Availing themselves of that
opportunity, plaintiffs filed the [first amended complaint].” The
court found the new grounds should have been raised earlier in
the first amended complaint and there was an unreasonable
delay in seeking to file the second amended complaint at a late
stage of the proceedings. It said, “There is nothing to suggest
plaintiffs could not have identified additional facts constituting
dangerous conditions, such as a lack of adequate warning signs,
reduced pavement friction, longitudinal grade, or superelevation
of the roadway, when they filed their [first amended complaint],
considering that the Court raised questions regarding the nature
of the dangerous condition in its Minute Order.” (Italics added.)
6.
Lin has not made a sufficient showing to challenge the trial
court’s fact findings on these issues.
In that May 18, 2021, minute order, the trial court
sustained a demurrer to the original complaint and stated it
needed “much more detail describing the alleged dangerous
condition.” Caltrans claims the court’s findings of unreasonable
delay are supported because: 1) Caltrans produced discovery in
May 2021, “which included documents related to wet weather
accident history, signage on the roadway, and recommendations
based of the State’s internal traffic investigation reports,” before
Lin filed the first amended complaint; and 2) Lin’s request to file
a second amended complaint on July 27, 2022, “came more than
13 months after [Lin] received the pertinent data, and
approximately three months after” Caltrans filed the summary
judgment motion. (Italics added.) Lin did not raise her new
factual theories in her discovery responses. Caltrans relied on
those responses, and it claims Lin’s failure to change her
discovery answers to notify it that she was changing her theories
was prejudicial.
The trial court may properly consider prejudice to the
defendant in denying a plaintiff’s request to amend. (Melican v.
Regents of University of California, supra, 151 Cal.App.4th at
p. 176.) Caltrans has a strong claim of prejudice. “Prejudice can
include the time and expense associated with opposing a legal
theory that a plaintiff belatedly seeks to change.” (Payton v. CSI
Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832, 849.)
Granting the late request to amend would also essentially
authorize a different new lawsuit against Caltrans after Caltrans
had prevailed on its motion for summary judgment. In Melican,
the appellate court affirmed the trial court’s denial of plaintiffs’
7.
request to amend the complaint at a summary judgment hearing.
The court said, “It would be patently unfair to allow plaintiffs to
defeat [University of California’s] summary judgment motion by
allowing them to present a ‘moving target’ unbounded by the
pleadings.” (Melican v. Regents of University of California, supra,
151 Cal.App.4th at p. 176.)
“Thus, when a plaintiff seeks leave to amend his or her
complaint only after the defendant has mounted a summary
judgment motion directed at the allegations of the unamended
complaint, even though the plaintiff has been aware of the facts
upon which the amendment is based, ‘[i]t would be patently
unfair to allow plaintiffs to defeat [the] summary judgment
motion . . . .’ ” (Falcon v. Long Beach Genetics, Inc., supra, 224
Cal.App.4th at p. 1280, italics added.)
Lin’s counsel claim they prepared a motion to amend. But
they did not file it with the court and it is not part of the record
on appeal. Consequently, the record does not show grounds to
amend, excusable delay, or compliance with California Rules of
Court, rule 3.1324. Moreover, we cannot determine the adequacy
of a proposed amended pleading when it is not part of the record.
In Lin’s reply brief, her counsel disagreed with Caltrans’s
position that there was an unreasonable delay in seeking an
amendment. But, unlike Caltrans, they have not cited to the
record. They also made no factual showing of good cause for
delay in the trial court.
Lin’s counsel’s brief oral request to amend, which was only
made after the trial court issued its tentative ruling to grant
summary judgment, was untimely, insufficient (Cal. Rules of
Court, rule 3.1324) and properly denied. (Champlin/GEI Wind
Holdings, LLC v. Avery (2023) 92 Cal.App.5th 218 [trial court
8.
properly denied plaintiff’s oral request to amend the complaint
that was first raised at the summary judgment hearing]; Miles v.
City of Los Angeles (2020) 56 Cal.App.5th 728, 739 [denying
request to amend made after the court indicated its intention to
grant summary judgment was proper]; Distefano v. Forester
(2001) 85 Cal.App.4th 1249, 1265, italics added [request to
amend the complaint is untimely where the plaintiff did not seek
“leave to amend his complaint before the hearing” on the
summary judgment motion].)
Design Immunity
In certain cases Caltrans’s failure to erect median barriers
to prevent crossover accidents may result in civil liability.
(Cornette v. Department of Transportation (2001) 26 Cal.4th 63,
68-69.) But in those cases, Caltrans “may escape such liability by
raising the affirmative defense of ‘design immunity.’ ” (Id. at
p. 69.)
Caltrans proved that it had design immunity for the
portion of the highway where the accident took place.
“[A] public entity may avoid liability for a dangerous
condition of property if it can establish that the injury was caused
by an approved plan or design.” (Laabs v. City of Victorville,
supra, 163 Cal.App.4th at p. 1262.) “To establish the immunity,
the entity must establish: ‘ “ ‘(1) [a] causal relationship between
the plan and the accident; (2) discretionary approval of the plan
prior to construction; [and] (3) substantial evidence supporting
the reasonableness of the design.’ ” ’ ” (Ibid.)
Dangerous condition “liability is imposed” on the public
entity “only when there is some defect in the property itself and a
causal connection is established between the defect and the
injury.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112,
9.
1135, italics added.) At the time of the accident, the road was
wet with a “light mist,” but the CHP officer who came to the
scene could see the entire roadway in both directions. There is a
curve near the accident scene. But it is not a sharp curve. It is a
“moderate curve” as “you proceed west bound.” Caltrans
presented evidence showing that there was no defect in the
highway and the highway was safe. It identified the issue as a
highway design based on an approved plan that did not include a
concrete barrier between traffic lines.
Caltrans’s expert Sams, a registered civil engineer, said the
“[a]ccident [s]ite” had “[f]our 12-foot-wide travel lanes; 6-7 foot
wide median defined by double yellow sold stripes with a 12”
wide rumble strip running down the center; 3-4-foot-wide right
side paved shoulders. The pavement and delineation were in
good condition.” In 1962, the state engineers approved the
original plans for the widening of highway 154. The engineers
had discretionary authority to approve those plans.
In 2010, a second plan modified the area of the accident site
with the addition of a “rumble strip.” This strip is to “alert errant
drivers with tactile and auditory notification when they start to
drift into the opposing lanes.” The plans for this modification
were approved by a licensed Caltrans engineer who had
“discretionary authority” to approve the design. In 2011,
Caltrans executed this approved plan by overlaying asphalt in
the area in the vicinity of the accident site to improve the friction
characteristics of the road surface.
Sams said the median with a rumble strip created a “soft
barrier” which was appropriate and reasonable for the four-lane
segment of the highway that included the accident site. A
concrete barrier was not legally required as part of the design
10.
plan. The absence of such a barrier in the design was reasonable.
Sams said studies have shown that installing concrete median
barriers results “in an increase in median accidents” as “the
barrier is a fixed object and can cause serious injury either by
direct impact or vehicles deflecting back into traffic.” There were
other reasons why a concrete median barrier was not reasonable.
There was no “pattern or concentration of cross median collisions”
in the subject area; a barrier would involve environmental issues,
was not feasible, and would involve excessive costs.
Lin claims the 1962 plans did not consider a concrete
median barrier. But Sams’s declaration shows the state
engineers decided not to “include a concrete barrier anywhere on
the project to separate the eastbound and westbound travel
lanes.” (Italics added.) Sams said in 2010 Caltrans considered
the issue of a barrier in its approved plans for that project and
decided that a rumble strip was appropriate and a concrete
barrier was not. He was not involved with the original approval
process, but he may present evidence as an expert regarding that
process. (Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929,
947.) He showed Caltrans’s design decisions fell within its design
immunity. (Laabs v. City of Victorville, supra, 163 Cal.App.4th at
pp. 1263-1264.)
Lin relied on her expert Dale Dunlap who opined that a
rumble strip barrier is ineffective and constituted an
unreasonable design decision because only a concrete median
barrier would suffice. Caltrans properly objected that Dunlap
made a conclusion without stating sufficient supporting facts. An
opinion without citing studies, scientific evidence, or relevant
foundational facts is not admissible. (People v. Wright (2016) 4
Cal.App.5th 537, 545-546; Grenier v. City of Irwindale (1997) 57
11.
Cal.App.4th 931, 941 [a plaintiff’s expert’s mere “differing
opinion” does not undermine the public entity’s substantial
evidence showing a reasonable design].) Moreover, Dunlap’s
declaration is based on issues that were not raised in the first
amended pleading, and his opinions based on such issues cannot
be considered to challenge the summary judgment. (Laabs v.
City of Victorville, supra, 163 Cal.App.4th at p. 1253.)
Consequently, his declaration, in large part, is not relevant for
this appeal. (Ibid.)
Dunlap also did not show Caltrans lacked a reasonable
justification to be concerned about constructing a concrete
barrier. Studies show such barriers “ ‘usually result in an overall
increase in accidents and injuries.’ ” (Wyckoff v. State of
California (2001) 90 Cal.App.4th 45, 56, italics added.) Courts
have held that decisions not to install median barriers were
reasonable because such barriers reduce the “lane width” of
highways and streets, which causes more accidents. (See, e.g.,
Sutton v. Golden Gate Bridge, Highway & Transportation Dist.
(1998) 68 Cal.App.4th 1149, 1160.) Rumble strips are now a
commonly used highway device to alert drivers who inadvertently
veer into another lane with a loud noise and vibration warning.
(See, e.g., Rodriguez v. Department of Transportation (2018) 21
Cal.App.5th 947, 951.) “That a paid expert witness for plaintiff,
in hindsight, found that the design was defective, does not mean,
ipso facto, that the design was unreasonably approved.”
(Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515,
525.) “ ‘ “[A]s long as reasonable minds can differ concerning
whether a design should have been approved, then the
governmental entity must be granted immunity.” ’ ” (Sutton, at
p. 1158.)
12.
Lin’s Burden to Show a Loss of Immunity
Because Caltrans proved design immunity, the burden
shifts to Lin to show Caltrans lost that immunity. (Laabs v. City
of Victorville, supra, 163 Cal.App.4th at p. 1268.) Loss of design
immunity may be shown by changes in conditions that make the
area dangerous or by traffic statistical evidence. (Id. at pp. 1268-
1269.) Lin had to show: 1) the design became dangerous because
of changed physical conditions, 2) Caltrans had actual or
constructive knowledge of these changes, and 3) Caltrans had a
reasonable time to make corrections. (Id. at p. 1268.)
Sams determined the subject portion of the highway was
safe and he relied on accident rate statistics. Lin objected to the
facts Sams relied on to calculate accident rate statistics. The
trial court found those facts were accurate and overruled Lin’s
objections. From our de novo review, we conclude the trial court
was correct and Lin’s objections were properly overruled. Lin
claimed Sams used statistics for accidents involving cars that
crossed over a center median. She argues he should have used
statistics for all accidents regardless of type and he could not
properly determine the cause of accidents by reviewing accident
rate statistics.
But Sams relied on accident incident reports that had
detailed descriptions of each accident. From these incident
reports, he carefully distinguished between crossover median
accidents and other types of accidents. He properly identified
and relied on accidents that were factually similar to the accident
in this case. (Salas v. Department of Transportation (2011) 198
Cal.App.4th 1058, 1072; Wyckoff v. State of California (2001) 90
Cal.App.4th 45, 60-62.) Lin claimed all accidents had to be
included regardless of type. But that would lead to a less
13.
accurate and a statistically disproportionate result. (Salas, at
p. 1072.) Lin alleged Caltrans was negligent for not building a
concrete center median divider. That made crossover accidents
the most relevant for Lin’s claim of negligence. (Ibid.)
Lin notes that Dunlap determined there was a higher
accident rate than Sams’s, and she claims the trial court should
not have rejected his conclusions. But Dunlap opined Caltrans
provided misleading information without stating facts to support
that claim. He suggested Sams should not have used statistics
for a five-year period before this accident. But accident statistics
for that five-year period provide the proper method for
determining the accident rate. (Mirzada v. Department of
Transportation (2003) 111 Cal.App.4th 802, 809; Wyckoff v. State
of California, supra, 90 Cal.App.4th at p. 61.) Moreover, Dunlap
did not show the facts Caltrans used to support its five-year
statistics or its mathematical calculations were incorrect.
Dunlap’s data was overinclusive. He used all accidents,
regardless of type, instead of the substantially similar accident
standard. (Salas v. Department of Transportation, supra, 198
Cal.App.4th at p. 1072.)
Sams provided detailed information regarding each
accident he considered, including its date, the type of accident,
whether it was a median crossover, the precise location, and the
weather conditions. He thus provided the foundational facts for
his assessment. Dunlap did not. Caltrans properly objected to
Dunlap’s conclusions because they were not supported by reliable
foundational facts (People v. Wright, supra, 4 Cal.App.5th at pp.
545-546), and his statistics were “intentionally vague” without
any effort to provide the number of median crossover accidents.
(Mirzada v. Department of Transportation, supra, 111
14.
Cal.App.4th at p. 809.) Moreover, Dunlap’s statistics were
insufficient to support a triable issue of fact because, unlike
Sams’s showing, Dunlap failed to provide “information” regarding
“the factual circumstances surrounding these accidents.” (Sun v.
City of Oakland (2008) 166 Cal.App.4th 1177, 1187.)
Sams determined that for the five-year period prior to the
date of this accident there were four substantially similar
accidents near this section of highway and that 25 million cars
had passed by this area. That results in an accident rate of
0.000016 percent. That is a traffic accident rate supporting his
determination that this portion of roadway was safe. (Mirzada v.
Department of Transportation, supra, 111 Cal.App.4th at p. 804;
Wyckoff v. State of California, supra, 90 Cal.App.4th at pp. 60-62;
Callahan v. City & County of San Francisco (1971) 15 Cal.App.3d
374, 379 [“The paucity of accidents occurring during this time
clearly indicates that the intersection was safe”]; see also
Compton v. City of Santee (1993) 12 Cal.App.4th 591, 599-600,
overruled on another ground in Tansavatdi v. City of Rancho
Palos Verdes (2023) 14 Cal.5th 639, 659, fn. 4.)
The conduct of the driver who caused the accident is
relevant in deciding whether Caltrans is liable. (Callahan v. City
& County of San Francisco, supra, 15 Cal.App.3d at p. 379.)
Caltrans is not liable for a driver’s dangerous conduct that causes
an accident on a highway that is safe. (Ibid.) Lin claims Pereyra
was driving properly and with “due care.” But her effort to
minimize his conduct in order to place liability on Caltrans is
impeached by a judicial admission she made in her pleading. (24
Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199,
1211 [a party in summary judgment may rely on admissions in
their opponent’s pleadings].) In the first amended complaint, Lin
15.
said Pereyra “operated his vehicle dangerously, at too high a
speed for the conditions, and lost control of it completely–
immediately killing Decedent.” (Italics added.) Moreover, the
CHP traffic collision report concluded, “[H]ad Mr. Pereyra not
been driving his vehicle while under the influence, this collision
would not have occurred.” (Italics added.)
A loss of design immunity may be shown where the public
entity is on notice that under “actual operation” there is an
increased traffic flow that makes the design no longer safe.
(Cornette v. Department of Transportation (2001) 26 Cal.4th 63,
70-71.) But Lin made no showing that there had been any
substantial increase in the rate of traffic on highway 154 over a
10-year period. She consequently did not show Caltrans was on
notice that this portion of the highway had become more
dangerous due to increased traffic flow. (Laabs v. City of
Victorville, supra, 163 Cal.App.4th at p. 1269.) Dunlap admitted
the “traffic experienced by [highway 154] has been generally
consistent” for the time period of 2010 to 2020. (Italics added.)
Lin claimed other factors put Caltrans on notice that it had
to make corrections. Dunlap said that over a 10-year period
there were 25 accidents in the general area near where this
accident took place and 19 occurred during wet weather. Lin
suggests Dunlap showed an increasing trend of wet weather
cross-median accidents at the accident site. But Dunlap did not
state facts to support such a claim. He did not state the date of
the accidents, the type, whether they were median crossover
accidents, the precise location of these accidents, or whether they
occurred at the accident site. (Mirzada v, Department of
Transportation, supra, 111 Cal.App.4th at p. 809.)
16.
By contrast, Sams’s facts were so detailed he could identify
the date, type of accident, and precise location of all accidents.
He could identify all crossover accidents that occurred at the
accident site.
Dunlap avoided discussing the rate of accidents during the
five-year period before the current accident. But that was the
relevant period for determining whether the accident rate
increased or decreased leading up to the time of this accident.
(Wyckoff v. State of California, supra, 90 Cal.App.4th at p. 61.)
He did not state facts to show the number of crossover accidents
at the accident site within that five-year period. Because this
case involves whether Caltrans should have erected a center
median to prevent crossover accidents, the relevant statistical
issue is the “crossover” accident rate at the accident site.
(Mirzada v. Department of Transportation, supra, 111
Cal.App.4th at pp. 804, 809.) But that rate cannot be determined
where, as here, the plaintiff’s expert fails to specify the number of
crossover median accidents. (Ibid.) Without such statistical
evidence, Lin does not show triable issues of fact in a crossover
median case. (Ibid.)
Dunlap showed that wet highways produce more accidents.
That is a commonly known fact, but it does not show why
Caltrans should be on notice about a special condition at this
accident site. (Mirzada v. Department of Transportation, supra,
111 Cal.App.4th at p. 808.) Moreover, the mere fact that wet
weather makes roads more slippery does not, by itself, support a
cause of action against Caltrans. (Allyson v. Department of
Transportation (1997) 53 Cal.App.4th 1304, 1320.)
Lin made no showing that the rate of accidents increased
during the most recent five-year period before this accident.
17.
Sams’s statistics show a tiny accident rate of 0.000016 percent
for that period. (Wyckoff v. State of California, supra, 90
Cal.App.4th at pp. 60-62.) Sams determined that there were four
substantially similar median crossover accidents in that five-year
period near the accident site. But two of those were not at the
“vicinity” of this accident site curve–one was four miles east of it
and the other was 900 feet east of it. Of the remaining two
accidents at this curve, one occurred in November 2015 and the
other in January 2018. Consequently, within the five-year period
before this accident, there were actually only two crossover
median accidents at this accident site with 25 million cars having
passed this area.
It was “incumbent on [Lin] to show this rate was
statistically aberrant, i.e., unusual or excessive in some respect”
(Compton v. City of Santee, supra, 12 Cal.App.4th at p. 599,
italics added) and “sufficiently beyond ordinary statistical
probabilities to alert [Caltrans] of the dangerous nature” of the
roadway. (Id. at p. 600.) In Wyckoff, the court held raw data
such as a plaintiff’s showing of “nine crossover accidents . . . in
the two year period prior to plaintiffs’ accident” is not sufficient to
show a loss of immunity without evidence of an “aberrant”
increase in the rate of accidents. (Wyckoff v. State of California,
supra, 90 Cal.App.4th at p. 61, fn. 3.)
As the trial court correctly noted, Lin presented no “surveys
or studies showing a statistically aberrant increase in wet
weather accidents or cross centerline collisions at the subject
location” leading up to the time of the accident. (Wyckoff v. State
of California, supra, 90 Cal.App.4th at p. 61, fn. 3; see also Laabs
v. City of Victorville, supra, 163 Cal.App.4th at p. 1269.) Sams
concluded there was no aberrant rate of increase in crossover
18.
median accidents at the accident site. His conclusion was
supported by specific foundational facts including the dates,
locations, and descriptions of all crossover accidents. Because
Dunlap did not provide such foundational facts, he was not in a
position to render an opinion on this issue. Because he elected
not to address Sams’s foundational facts, those facts stand
uncontradicted. Lin’s presentation of general accident statistics
“does not establish that the accident rate of this particular site
has increased.” (Mirzada v. Department of Transportation,
supra, 111 Cal.App.4th at p. 808, italics added.)
The trial court also correctly noted that Lin presented “no
evidence demonstrating a significant change in the roadway
conditions during relevant time periods.” (Grenier v. City of
Irwindale, supra, 57 Cal.App.4th at p. 945.) Dunlap did not
provide admissible evidence showing dangerous or changed
roadway surface conditions for 1962, 2010, 2011, and for 2015 to
2020. “Without evidence of some change, a design which was
reasonably approvable at its inception remains reasonably
approvable today.” (Compton v. City of Santee, supra, 12
Cal.App.4th at p. 598.) Even where there is a showing of “a
significant accident history,” that “is insufficient to establish loss
of design immunity where plaintiffs have failed to show a change
in physical conditions from those existing at the time the design
plan was approved.” (Wyckoff v. State of California, supra, 90
Cal.App.4th at p. 61, fn. 3, italics added.)
Lin’s Reliance on Dunlap’s New Theories
Lin’s reliance on Dunlap’s declaration is largely misplaced.
Dunlap relied on new issues that were not raised as negligence
grounds in the first amended complaint, such as Caltrans’s
alleged failure to resurface the highway causing a loss of road
19.
friction that made the highway slippery. But, as the trial court
correctly ruled, those new issues cannot be used to oppose
summary judgment because they were not raised in the first
amended complaint. (Laabs v. City of Victorville, supra, 163
Cal.App.4th at p. 1253.) Moreover, Caltrans also correctly notes
that even had Lin pled them in the first amended complaint,
Dunlap did not provide the necessary foundational facts to be
able to opine on them.
Dunlap said the surface of the highway “was not providing
drivers with sufficient traction to maintain control.” But
“conclusory” opinions are not sufficient without facts and
scientific evidence to support them. (Santa Ynez Band of
Chumash Mission Indians v. Lexington Insurance Co. (2023) 90
Cal.App.5th 1064, 1073, review granted July 12, 2023, S280353;
People v. Wright (2016) 4 Cal.App.5th 537, 545-546; Mirzada v.
Department of Transportation, supra, 111 Cal.App.4th at p. 808.)
Caltrans properly objects to Dunlap’s ability to opine on the
physical condition and friction characteristics of the highway. It
correctly notes Dunlap did not: 1) state “what standard coefficient
of friction” applies (Mihailovich v. Laatsch (7th Cir. 2004) 359
F.3d 892, 910); 2) state what the coefficient of friction was at the
time of the accident; 3) cite relevant scientific studies; 4) state
that he took “any physical” evidence; and 5) personally inspect the
relevant portion of the highway. Because Dunlap did not
personally examine the road, he was not in a position to make a
comparative analysis to determine whether the accident site was
slippery, or any more slippery than any other portion of highway
154. (People v. Wright, supra, 4 Cal.App.5th at pp. 545-546;
Francis v. Sauve (1963) 222 Cal.App.2d 102, 114; Pollock v. State
Highway & Transportation Dept. (N.M.Ct.App. 1999) 984 P.2d
20.
768, 774 [expert “obtained personal knowledge of the accident
site by visiting it”].)
Moreover, Dunlap’s conclusion about the loss of friction was
based on speculation. He did not conduct the tests necessary to
determine this issue, such as: surface slippery or highway
“friction test[ing]” (Braganza v. Albertson’s LLC (2021) 67
Cal.App.5th 144, 153; Zavinski v. Ohio Department of
Transportation (OhioCt.App. 2019) 135 N.E.3d 1170, 1180); tests
“to determine the drag factor or ‘coefficient of friction’ of the
highway surface” (LeMieux v. Bishop (1973) 209 N.W.2d 379,
375); “ball-bank” tests (Farlow v. Roddy (1986) 493 So.2d 592,
599); asphalt touch tests; highway “texture” tests (Barrett v. State
(N.Y.App.Div. 1965) 256 N.Y.S.2d 261, 263). He did not make
highway surface measurements. He consequently had no
foundation to render an opinion. (Ibid.)
By contrast, Sams, a qualified state highway engineer
expert, visited the site, made a proper inspection, “measured the
roadway features,” and determined the “pavement and
delineation were in good condition.”
Dunlap said that “it is necessary to periodically rehabilitate
the road surface” by replacing the pavement. He incorrectly
assumed that “Caltrans did nothing to improve the surface
friction” of this area of the highway. But it is undisputed that in
2010 Caltrans approved a project that “overlayed” the road
surface with “Hot Mix” asphalt to “increase the pavement life and
improve friction characteristics of the pavement surface.” Dunlap
did not show that project did not meet the resurfacing highway
design standards. Nor did he present evidence or relevant
studies to show what was the expected life of that resurfacing or
at what date new resurfacing would be required. (People v.
21.
Wright, supra, 4 Cal.App.5th at pp. 545-546.) His opinion about
the need for resurfacing was not supported by required
foundational facts showing “the condition of the texture of the
road at or near the date of the accident.” (Barrett v. State, supra,
256 N.Y.S.2d at p. 263, italics added.)
Dunlap noted that Caltrans’s traffic incident reports
recommended high friction surface treatment to deal with a
“ ‘pattern of wet weather collisions.’ ” But, as Caltrans notes, the
area selected for this treatment was not the curve that is at the
center of this case. It consequently did not involve the relevant
area for this action. (Mirzada v. Department of Transportation,
supra, 111 Cal.App.4th at p. 808.)
Moreover, as part of its duty, Caltrans periodically makes
recommendations to improve its highways. Such
recommendations for improvements are not admissions that the
road is unsafe or in bad shape. Nor are they admissions that “the
conditions had changed in a way that ended the design
immunity.” (Mirzada v. Department of Transportation, supra,
111 Cal.App.4th at p. 808.)
Lin raises other issues that cannot be considered because
they were not raised in her first amended complaint. (Laabs v.
City of Victorville, supra, 163 Cal.App.4th at p. 1253.) We have
reviewed Lin’s remaining contentions and we conclude she has
not shown grounds for reversal.
22.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to
respondent.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
23.
Thomas P. Anderle, Judge
Superior Court County of Santa Barbara
______________________________
Cotchett, Pitre & McCarthy, Robert B. Hutchinson, Kelly
W. Weil and Hannah K. Brown for Plaintiffs and Appellants.
California Department of Transportation – Legal Division,
Erin E. Holbrook, Chief Counsel, G. Michael Harrington, Deputy
Chief Counsel, Ardine Zazzeron, Assistant Chief Counsel, and
Harinet Sahle for Defendant and Respondent.
24.