Kennedy v. City of Fresno CA5

Filed 9/10/20 Kennedy v. City of Fresno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

STEVEN KENNEDY,
F077029, F077585
Plaintiff and Appellant,
(Super. Ct. No. 14CECG02334)
v.

CITY OF FRESNO, OPINION
Defendant and Appellant.

APPEAL from a judgment and order of the Superior Court of Fresno County.
Rosemary T. McGuire, Judge.
Baradat & Paboojian, Warren R. Paboojian, Lynne Thaxter Brown, Adam B.
Stirrup and Stephanie H. Borchers for Plaintiff and Appellant.
Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, Catherine E. Bennett,
William A. Bruce and R. Scott Kimsey for Defendant and Appellant.
-ooOoo-
In this consolidated appeal, plaintiff Steven Kennedy (Kennedy) appeals from a
jury verdict rejecting his assertion defendant City of Fresno (Fresno) maintained a
dangerous intersection and thus was liable for injuries Kennedy suffered in a collision
occurring at that intersection. Kennedy alleges the trial court made certain erroneous
evidentiary rulings that prejudicially affected his case. Fresno separately appeals
following the denial of its expert costs request under Code of Civil Procedure section 998
(section 998). Fresno claims the trial court incorrectly determined its settlement offer
was invalid. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We begin, focusing on Kennedy’s appeal. We discuss the facts of Fresno’s appeal
when resolving that portion of the case. The impetus for this litigation was the collision
between a motorcycle and a vehicle at the intersection of North Cedar Avenue and East
Bulldog Lane (the intersection) near California State University, Fresno. According to
the second amended complaint, “On April 30, 2014, at approximately 3:30 p.m.,
[Kennedy] was riding his motorcycle southbound on North Cedar Avenue approaching
the intersection with East Bulldog Lane in Fresno, California .… [Michael Bravo] was
driving a Dodge Avenger northbound on North Cedar Avenue approaching the
[intersection], failed to recognize that [Kennedy] had the right of way and made a [U]-
turn directly in front of and into [Kennedy]’s path causing the two vehicles to collide. As
a result of the collision, … [Kennedy] suffered serious and permanent bodily injuries,
including but not limited to, amputation of his left leg.”
Fresno was added to the case in Kennedy’s first amended complaint. There
Kennedy alleged that this accident occurred, in part, because the intersection was
dangerous and thus that Fresno should be held liable for Kennedy’s damages. In this first
amended complaint, Kennedy alleged the intersection was dangerous because it lacked
“protective left[-]turn phasing” for north and southbound traffic, in essence that it lacked
a left-turn light. This complaint was successfully demurred because Fresno is entitled to
immunity for a lack of signal lights at intersections under Government Code
section 830.4, a point not contested in this appeal.
In his subsequent second amended complaint, Kennedy made several additional
allegations regarding the dangerous nature of the intersection. The theory of liability
presented focused on a combination of factors including the “ ‘t-intersection’ ” nature of
the location, increased and high traffic volume, substandard curb and median heights,

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substandard lane widths, improperly placed trees and signs, and improperly phased lights,
such that drivers making left or U-turns would have a false sense of security and end up
making dangerous turns due to the creation of a concealed trap.
Kennedy ultimately proceeded to trial on this theory.
Relevant Evidentiary Rulings
Relevant to this appeal, Fresno filed several motions in limine designed to curtail
the scope of evidence demonstrating a dangerous condition existed at the intersection. In
its motion in limine No. 1,1 which sought to exclude Kennedy’s expert from testifying,
Fresno set out its general argument why Kennedy’s evidence should be limited. Fresno
argued that the nature of Kennedy’s contentions required the use of expert testimony to
establish a dangerous condition. Focusing on the requirements for proper design of an
intersection, Fresno argued that whether a particular intersection was improperly
designed was a complex question that was not within the common knowledge of
laypersons. It pointed out that licensed traffic engineers with at least a bachelor’s degree
are required for proper design under industry standards.
In motion in limine No. 5, Fresno expanded on this theory to argue the court
should exclude non-expert opinion testimony from Diana Katen (Katen), a witness
offered by Kennedy to demonstrate others had seen and complained of the dangerous
nature of the intersection. Kennedy opposed these motions, arguing “the dangerous
condition issue on the property is a factual issue for the jury to decide based on the
evidence that’s presented,” whether that evidence is from laypersons, Fresno itself, or an
expert.
The court determined that expert testimony would be governed by the Code of
Civil Procedure and Evidence Code and, although permitting specific arguments later,

1 It appears this motion was presented to the court in an “A” through “G” format that
encompassed at least some of the arguments of motion in limine No. 5. For the purposes of this
opinion, we refer to the motions by their underlying numbers.

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rejected motion in limine No. 1. It then turned to discussing the non-expert testimony
partially subject to motion in limine No. 5. On this aspect, the court provided a tentative
ruling, stating “that if you have a witness that’s going to come in and say, yeah, this was
dangerous, I don’t know that that’s appropriate testimony for a lay witness to basically
render an opinion that the intersection was dangerous.” The argument then turned to
certain documents reflecting citizen complaints and whether those would be admissible.
The court explained to counsel that “there’s not to be any reference to the content of any
of the complaints or the opinions of the lay witnesses in jury voir dire or opening
statements until I have a chance to look at this more fully.” When motion in limine No. 5
was separately argued later, the court confirmed that “Katen can testify with regard to her
personal observations with regard to the intersection, not to what anybody has told her
about the intersection. And not giving any opinion that she thought the intersection was
dangerous.”
In its motion in limine No. 9, Fresno moved to exclude evidence of post-accident
changes to or accidents at the intersection. Fresno argued any post-accident
improvements, and the accident history post-improvements, were both barred under
Government Code section 830.5, subdivision (b). The court expressed its tentative intent
to grant the motion but asked for clarity on its scope. After extensive discussion, the
court ruled that it would “grant the motion as it relates to subsequent accidents,
subsequent acts after the subject accident,” but that the court would revisit the issue if
evidence was offered for impeachment purposes. Kennedy later attempted to utilize
evidence of post-accident activity, including a letter from a police officer on the
perceived dangerousness of the intersection, in cross-examination, but the trial court
ruled such evidence could not be introduced for any purpose.
In addition, an issue arose during trial regarding the time frame of evidence that
could be admitted to demonstrate notice of the alleged dangerous condition. Kennedy
desired to introduce evidence dating back to 1979, showing Fresno had notice of citizen

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complaints of dangerousness. Fresno objected, contending such evidence could not be
introduced prior to evidence showing the intersection was dangerous at the time of the
complaint, a point Fresno claimed could not be proven because Kennedy’s expert had not
opined on dangerousness prior to 2000. The trial court ultimately ruled that Kennedy had
introduced evidence of dangerousness as early as 1994, and limited Kennedy’s evidence
of notice to evidence arising after that date.
Jury Verdict
The case ultimately proceeded to a jury verdict. The parties utilized a special
verdict form that asked the following questions, among others:
“1. Was the intersection of [North] Cedar Avenue and [East] Bulldog Lane in a
dangerous condition at the time of the incident? [¶] … [¶] If your answer to this
question is yes, then answer the next question. If you answered no, stop here, answer no
further questions, and have the presiding juror sign and date this form.
“2. Did the dangerous condition create a reasonably foreseeable risk that this kind
of incident would occur? [¶] … [¶]
“3. Did … Fresno have notice of the dangerous condition for a long enough time
for … Fresno to have protected against it? [¶] … [¶]
“4. Was the dangerous condition a substantial factor in causing harm to …
Kennedy?”
The jury returned a verdict of “No” to the first question, concluding the
intersection was not dangerous and, following the instructions, did not reach any of the
other questions on the special verdict form.
DISCUSSION

For the purposes of Kennedy’s appeal, Kennedy first argues the trial court
incorrectly excluded “non-expert” opinion testimony from his witnesses, requiring him to
exclusively offer expert testimony of dangerousness. Second, Kennedy argues the trial
court’s limitation on notice evidence to that arising after 1994 was erroneous. Third,

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Kennedy takes issue with the court’s determination that post-accident evidence could not
be used for any purpose. With respect to Fresno’s appeal, discussed further below,
Fresno takes issue with the trial court’s determination that its pretrial settlement offer did
not satisfy the requirements necessary to award expert costs under section 998. We
consider each argument below.
The Trial Court Correctly Excluded “Non-Expert” Opinion Testimony
Kennedy’s first assertion of error contends that the trial court incorrectly
determined that expert testimony was required to demonstrate the intersection qualified
as a dangerous condition. Kennedy argues that the case law demonstrates lay opinion
evidence is admissible to prove the existence of a dangerous condition in all
circumstances, and thus the trial court was incorrect in ordering that Kennedy’s lay
witnesses not describe the intersection as dangerous. Kennedy further contends the trial
court incorrectly denied his motion for a new trial by misstating the import of its prior
rulings to imply they did not exclude lay witness opinions on dangerousness.
Standard of Review and Applicable Law
“If a witness is not testifying as an expert, his testimony in the form of an opinion
is limited to such an opinion as is permitted by law, including but not limited to an
opinion that is: [¶] (a) Rationally based on the perception of the witness; and
[¶] (b) Helpful to a clear understanding of his testimony.” (Evid. Code, § 800.) “The
meaning of subdivision (a) is clear: ‘A witness who is not testifying as an expert may
testify in the form of an opinion only if the opinion is based on his own perception.’ ”
(People v. McAlpin (1991) 53 Cal.3d 1289, 1306, italics omitted.) “By contrast, when a
lay witness offers an opinion that goes beyond the facts the witness personally observed,
it is held inadmissible.” (Id. at p. 1308.) “The purpose of [subdivision (b)] is to
determine when a lay witness may supplement or illustrate his factual testimony by
drawing therefrom his own conclusion or inference, i.e., his opinion: under the Evidence

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Code that opinion need only be ‘helpful’—rather than necessary—to understanding the
witness’s testimony.” (Id. at p. 1306, fn. 11.)
Thus, “ ‘[a] lay witness may express an opinion based on his or her perception, but
only where helpful to a clear understanding of the witness’s testimony [citation], “i.e.,
where the concrete observations on which the opinion is based cannot otherwise be
conveyed.” [Citation.]’ [Citation.] Such a situation may arise when a witness’s
impression of what he or she observes regarding the appearance and demeanor of another
rests on ‘subtle or complex interactions’ between them [citation] or when it is impossible
to otherwise adequately convey to the jury the witness’s concrete observations.” (People
v. DeHoyos (2013) 57 Cal.4th 79, 130.) “Matters that go beyond common experience
and require particular scientific knowledge may not properly be the subject of lay opinion
testimony.” (Id. at p. 131.)
“Generally, a trial court’s ruling on the admissibility of evidence is reviewed for
an abuse of discretion.” (Ceja v. Department of Transportation (2011) 201 Cal.App.4th
1475, 1481.) “ ‘ “[W]hile the concept ‘abuse of discretion’ is not easily susceptible [of]
precise definition, the appropriate test has been enunciated in terms of whether or not the
trial court exceeded ‘ “the bounds of reason, all of the circumstances before it being
considered.…” ’ [Citations.]” [Citation.] “A decision will not be reversed merely
because reasonable people might disagree. ‘An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial judge.’
[Citations.] In the absence of a clear showing that its decision was arbitrary or irrational,
a trial court should be presumed to have acted to achieve legitimate objectives and,
accordingly, its discretionary determinations ought not [to] be set aside on review.” ’ ”
(Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 44–45.)
The Court’s Order Did Not Wholly Exclude Lay Witness Testimony
In his opening brief, Kennedy presents the following argument asserting an error
arose in this case: “Ample case law demonstrates that a dangerous condition on public

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property can be established by the opinions and perceptions of lay witnesses and that
such evidence, including lay witnesses’ opinions and perceptions that property is in a
‘dangerous’ or ‘unsafe’ condition, is competent and admissible on the issue.” Reciting a
plethora of cases in which such perception or opinion testimony was permitted, Kennedy
contends that the trial court in this case erred because it wholly excluded any perception
or opinion evidence on the condition of the intersection and certain lay witnesses’
opinions that the intersection was, in fact, dangerous. Kennedy further contends the trial
court misstated the import of its own ruling by suggesting that its order did not exclude
non-expert evidence to establish a dangerous condition and asserts that the non-expert
witnesses Kennedy was able to have testify were forced to give less effective testimony
because those witnesses could only recount their perceptions and could not describe the
intersection using words such as “dangerous” or “unsafe.”
In response, Fresno contends the trial court did not make such a sweeping ruling,
but rather, based on the nature of Kennedy’s theory of liability, concluded that lay
witnesses could present evidence concerning their perceptions but could not opine on the
dangerousness of the intersection. Noting that the litigation history and applicable law
precluded theories that the intersection was dangerous because it lacked traffic signals—a
claim upon which Fresno is immune under Government Code section 830.8—and
because there was an increase in traffic over time, Fresno contends that the remaining
theories presented relied upon technical aspects of the intersection’s construction upon
which lay opinion testimony could shed no meaningful light.
The nature of the dispute between the parties, specifically whether the trial court
improperly curtailed the effectiveness of Kennedy’s lay witness testimony by precluding
specific opinions or words from being presented to the jury, shows that Kennedy’s initial
framing of the issue is not correct. This is not a case where the trial court fully excluded
lay witness testimony from the jury. Rather, as Kennedy notes in his briefing and the
record reflects, lay witnesses were permitted to testify regarding their observations of the

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intersection over time and their direct perceptions of activities that occurred there. This
testimony is consistent with the specifics of the trial court’s order. For example, with
respect to Katen, the court expressly stated she could “testify with regard to her personal
observations with regard to the intersection.” Katen then testified about her observations
of the intersection going back to 1986.
Kennedy’s brief proceeds on the assertion that the trial court’s ruling was
erroneous and subject to de novo review because it wholly misunderstood the legal
framework. A lay witness is fully competent to testify regarding their perceptions of an
incident, provided their testimony is relevant and legally competent. (See People v.
Gosset (1892) 93 Cal. 641, 645–646 [witnesses may testify to perception and to pre-
existing knowledge related thereto].) Upon review, it is apparent that the trial court
correctly understood this concept and permitted the witnesses to testify regarding their
direct perception. The limitations imposed arose where lay witnesses wished to go
further and summarize their perceptions through recitation of an opinion. As noted
above, such opinions may be permitted under appropriate circumstances and our review
of such decisions asks whether the trial court abused its discretion. (See People v.
McAlpin, supra, 53 Cal.3d at p. 1306; Ceja v. Department of Transportation, supra,
201 Cal.App.4th at p. 1481.) As the trial court’s order here did not wholly exclude lay
witness testimony relevant to whether the intersection was dangerous, we conclude the
court properly understood the law and entered a ruling subject only to an abuse of its
discretion. We thus next consider whether the trial court did, in fact, abuse its discretion
in excluding lay witness opinion testimony on whether the intersection was dangerous.
As explained below, we conclude it did not.
Excluding Lay Witness Opinion Testimony Was Not An Abuse Of Discretion
As codified, Kennedy’s theory of liability in this case arose under Government
Code section 835, which provides: “Except as provided by statute, a public entity is
liable for injury caused by a dangerous condition of its property if the plaintiff establishes

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that the property was in a dangerous condition at the time of the injury, that the injury
was proximately caused by the dangerous condition, that the dangerous condition created
a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
“(a) A negligent or wrongful act or omission of an employee of the public entity
within the scope of his [or her] employment created the dangerous condition; or
“(b) The public entity had actual or constructive notice of the dangerous condition
under [Government Code s]ection 835.2 a sufficient time prior to the injury to have taken
measures to protect against the dangerous condition.”
Under Government Code section 830, subdivision (a), a dangerous condition is “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.” And, in line with
the statutory exceptions noted in Government Code section 835, under Government Code
section 830.4: “A condition is not a dangerous condition … merely because of the failure
to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed
restriction signs, as described by the Vehicle Code, or distinctive roadway markings as
described in [s]ection 21460 of the Vehicle Code.”
Accordingly, as the trial court appeared to recognize, Kennedy’s theory of liability
could not turn on contentions concerning the lack of a traffic signal or other clear liability
demonstrating dangerousness. Indeed, Kennedy’s argument relied upon a combination of
factors demonstrating that some aspect of the construction or engineering of the
intersection was dangerous in light of conditions that were known at the time or came to
be known later. As the parties discussed this issue, Kennedy conceded the lay witness
opinion testimony was not intended to confirm the intersection was, in fact, dangerous,
but rather to provide witness opinions based on how they viewed their interactions with
the intersection, his counsel stating: “A layperson can come in and say, ‘I can’t get
through [the] intersection, it’s so busy and crowded it’s dangerous.’ A lay person [sic]

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isn’t going to come in and say, ‘You know, I measured the intersection, and it was 19 feet
this way and that makes it’—the lay person [sic] is doing the same thing the person with
the stop sign is doing. This stop sign is dangerous, I avoid that because you can’t see the
stop sign concept.” The court, however, rejected this contention noting that the
determination whether an intersection was dangerous in this case was more complex and
excluded the proffered testimony because, with respect to the notion of what is
“dangerous and [a] dangerous condition, I have a concern that the jury could see it as
interchangeable.”
Kennedy argues this determination was erroneous. In support of his contention,
Kennedy relies on cases such as Carson v. Facilities Development Co. (1984) 36 Cal.3d
830, 844–845, Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 28–29, and
Bennett v. Kings County (1932) 124 Cal.App. 147, 149–150, among others, for the
proposition that California law has long permitted the use of lay witness testimony on the
dangerousness of road conditions. Kennedy himself, explains however, that in each of
these particular cases “the lay opinion was regarding the physical characteristics of the
dangerous condition.” In this sense, then, the testimony was not lay opinion testimony,
but lay witness testimony regarding the witnesses’ actual perceptions. Kennedy notes the
witness in Bennett was permitted to testify further as to their opinion that the bridge at
issue in that case was dangerous because of the nature of a turn leading into it. (Bennett,
at pp. 149–150.) However, even in that case, there was no general rule enunciated stating
that such lay witness opinion testimony is always permissible.
As discussed above, the general rule is that lay witness opinion testimony should
be permitted “ ‘only where helpful to a clear understanding of the witness’s testimony
[citation], “i.e., where the concrete observations on which the opinion is based cannot
otherwise be conveyed.” ’ ” (People v. DeHoyos, supra, 57 Cal.4th at p. 130.) Thus,
where a witness observes a dangerous condition and, based on that observation, opines
that the intersection is dangerous, such testimony may be permitted where the opinion

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offered is helpful to understanding the witness’s connection between the condition
observed and the issue of dangerousness.
As Kennedy correctly notes, in this case lay witnesses can readily testify that “the
area changed dramatically since the intersection … was constructed; or how busy and
congested the intersection was; or the problems motorists experienced in attempting to
make left-turns [sic] or U-turns from northbound Cedar Avenue; or that motorists making
left-turns [sic] and U-turns jumped the green and ran the red lights, or sat and waited for
multiple cycles while traffic backed up behind them.” Each of these observations could
rationally be based on direct observations. However, to take the next step and provide a
lay opinion that the intersection was dangerous, there would need to be a connection
between the increased traffic, driver activity, or other observation, and the dangerous
condition alleged, otherwise the opinion would not be helpful to understanding the
witnesses’ testimony.
In this case, that connection is complicated. Unlike cases such as Carson v.
Facilities Development Co., supra, 36 Cal.3d at pages 844–845, where the underlying
issue was whether an intersection was dangerous because a stop sign was obstructed by
objects on land owned by the city, or Bakity v. County of Riverside, supra, 12 Cal.App.3d
at page 29, where again a stop sign was obscured, this time by shade from street-side
trees, the most obvious basis for asserting dangerousness here, the lack of a light
controlling the busy intersection, was not a legitimate basis for liability given the
immunity provided by the Government Code. While expert testimony was not required
to support a jury verdict that the intersection was, in fact, dangerous, the court was tasked
with determining whether lay witnesses could go beyond reciting facts about the
intersection they had seen from which the jury could determine dangerousness to opining
for the jury whether those observations evidenced dangerousness without obscuring that
dangerous conditions based on the lack of a left-turn light were legally irrelevant.

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 Upon review, we do not see the trial court’s determination in this case that such
lay witness opinion testimony should be excluded as an abuse of discretion. Unlike those
cases where the connection between the witnesses’ observations and their opinion on
dangerousness rendered their opinions helpful to understanding their testimony, in this
case there is legitimate debate whether such opinions would be helpful. As the trial court
noted in its order denying Kennedy’s motion for new trial, extensive perception evidence
was permitted from various sources while Kennedy’s theory of liability turned in part on
engineering requirements and a combination of factors related to traffic at the
intersection. Ultimately, the trial court’s line-drawing, in permitting general observations
but excluding lay opinions on the ultimate issue of dangerousness, was consistent with
the legal precedent and did not exceed any logical bounds. The court was thus acting
within its proper discretion when it permitted factual testimony from lay witnesses but
excluded lay opinions.
The Trial Court’s Exclusion of Notice Evidence Was Harmless
Kennedy’s next assertion of error contends that the trial court incorrectly and
prejudicially excluded evidence prior to 1994, offered “to show [Fresno] had notice of the
dangerous condition” alleged in the second amended complaint. Kennedy identifies both
documentary and testimony evidence, dating back to 1979, that suggests people were
complaining to Fresno about the intersection. The trial court, however, limited the
introduction of such evidence to events occurring after Fresno conducted a left-turn study
in 1994. Kennedy alleges this restriction on evidence was incorrect and prejudicial.
Having concluded the court did not error in limiting the lay witness opinion testimony on
dangerousness, as discussed above, we conclude that even if an error occurred in the
context of the notice evidence, the error was harmless.
Standard of Review
“No judgment shall be set aside, or new trial granted, in any cause, … for any
error as to any matter of procedure, unless, after an examination of the entire cause,

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including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) “Although the Watson[2]
standard is most frequently applied in criminal cases, it applies in civil cases as well.”
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.) “Accordingly, errors in civil
trials require that we examine ‘each individual case to determine whether prejudice
actually occurred in light of the entire record.’ ” (Id. at pp. 801–802.)
The Jury’s Verdict Shows Any Error Is Harmless
In this case, the jury was presented with a special verdict form. The first question
asked whether Kennedy had proven a dangerous condition existed at the intersection.
Only after answering that question was the jury tasked with considering whether or not
Fresno had notice of that condition. The jury concluded that no dangerous condition
existed and thus did not reach the notice question. Kennedy contends that the exclusion
of evidence suggesting notice prior to a study from Fresno wrongly implies either that
there could not be a dangerous condition prior to doing a study or that Fresno could not
have notice of a dangerous condition until it investigates the area.
Even assuming error, however, Kennedy cannot demonstrate prejudice warranting
reversal. The special verdict form in this case separated the issue of a dangerous
condition at the intersection from the issue of whether Fresno had notice of that
condition. The jury’s verdict in the negative on the first issue rendered evidence related
to the later issue immaterial, as knowledge of a condition of property in this case is
irrelevant if the condition is not dangerous. (See, e.g., Adams v. MHC Colony Park, L.P.
(2014) 224 Cal.App.4th 601, 617 [“Stated from another perspective, the answers to the
questions in the special verdict forms regarding private nuisance provide this court with
sufficient information to conclude that the unsuccessful plaintiffs were not affected or
damaged by defendants’ substantial failure to provide and maintain the physical

2 People v. Watson (1956) 46 Cal.2d 818, 836.

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improvements of the Park and the common facilities in good working order and
condition”].)
We note that the jury verdict itself, while compelling, is not wholly dispositive of
this issue. (See Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 633–634
[“California courts are required to conduct ‘an examination of the entire cause.’
… Under this constitutional directive, courts must determine the question of prejudice
based on the facts and circumstances of the particular case”].) As discussed above,
Kennedy principally argues this evidence was offered “to show [Fresno] had notice of the
dangerous condition.” However, Kennedy hints and Fresno responds as if the evidence
may also have been relevant to show a dangerous condition existed. To the extent this
argument parallels Kennedy’s first point, we reach no different conclusion with respect to
the court’s decision to exclude lay opinions of dangerousness. Further, to the extent
Kennedy contends the evidence supports a finding of dangerousness at the time of the
accident, we see no harm in the court’s exclusion of such evidence given it permitted
evidence of a similar nature beginning in 1994. Accordingly, upon a full review of the
case and the evidence presented, we conclude that even if error is found on this issue, any
error was harmless and does not warrant reversal.
The Exclusion of Post-Accident Impeachment Evidence Was Harmless
Kennedy’s final assertion of error contends that the trial court incorrectly and
prejudicially excluded relevant impeachment evidence following an overly broad ruling
excluding all evidence of dangerousness following the date of the accident. In particular,
Kennedy identifies a resolution from Fresno State Associated Students, Inc. alleging the
intersection is dangerous and a letter sent by a traffic officer noting the number of tickets
written and collisions at the scene over a period of time as evidence he intended to
introduce to impeach Fresno’s claims the intersection was not deemed dangerous.
Kennedy claims this evidence was admissible both as impeachment evidence and as
evidence of a dangerous condition generally.

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 We do not agree. To the extent the contested evidence is offered as affirmative lay
opinions on the dangerousness of the intersection, our discussion of that issue, above,
controls and we find no error in limiting the nature of the evidence permitted. Further, to
the extent any error can be shown in excluding the evidence for impeachment purposes,
we conclude that error is harmless. The relevant question on this issue is whether, given
the permissible scope of evidence that could be offered, “ ‘a different result would have
been probable if such error … had not occurred or existed.’ ” (Unzueta v. Akopyan
(2019) 42 Cal.App.5th 199, 220–221; see Cal. Const., art. VI, § 13.) Upon review of the
record in his case, we conclude that Kennedy was permitted to and did introduce
numerous pieces of evidence regarding complaints about the intersection from at least
1994 until the time of the accident. The jury was thus presented with more than a
minimal amount of substantially similar evidence and rejected that evidence in finding
the intersection was not, in fact, dangerous at the time of the accident. We see nothing in
the additional evidence discussed with respect to this issue that meaningfully
differentiates it from the evidence rejected by the jury and conclude Kennedy has not
demonstrated any alleged error in excluding the evidence was prejudicial in this instance.
Fresno’s Settlement Offer Was Invalidly Overbroad
In its cross-appeal, Fresno contends the trial court erred in denying Fresno’s
request for expert costs because it incorrectly determined that Fresno’s pretrial settlement
offer pursuant to section 998 was overbroad and thus invalid. We do not agree.
Factual Background
Prior to trial in this case, Fresno sent Kennedy a settlement offer, purportedly
arising under section 998. In relevant part, the offer stated that “Defendant, [] FRESNO,
offers to settle with Plaintiff, [] KENNEDY, in the above-entitled action pursuant to
[s]ection 998 of the Code of Civil Procedure for the payment of the sum of $50,001.00
(Fifty Thousand One Dollars), in exchange for a dismissal of plaintiff’s entire case with
prejudice and full release including [] Civil Code section 1542 waiver of all claims

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against defendant, [] FRESNO.” (Italics omitted.) Kennedy did not respond to this offer.
After the defense verdict issued in this case, Fresno sought its expert costs under
section 998, an amount eventually totaling more than $266,000. The trial court rejected
this request. According to the court, while the settlement offer was made in good faith
and met the basic statutory requirements, the unqualified requirement to waive all claims
under Civil Code section 1542 (section 1542) meant “the offer was not sufficiently
specific to permit meaningful evaluation.”
Standard of Review and Applicable Law
“We independently review whether a section 998 settlement offer was valid. In
our review, we interpret any ambiguity in the offer against its proponent. [Citation.] The
burden is on the offering party to demonstrate that the offer is valid under section 998.
[Citation.] The offer must be strictly construed in favor of the party sought to be bound
by it.” (Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86 (Ignacio).)
Under section 998, “any party may serve an offer in writing upon any other party
to the action to allow judgment to be taken or an award to be entered in accordance with
the terms and conditions stated at that time.” (Code Civ. Proc., § 998, subd. (b).) If a
defendant makes a proper offer that is not accepted, and the plaintiff fails to recover more
than that offer, the trial court “in its discretion, may require the plaintiff to pay a
reasonable sum to cover postoffer costs of the services of expert witnesses.” (Id. at
subd. (c)(1).)
“It is well established that a purported section 998 offer ‘requiring the release of
claims and parties not involved in the litigation is invalid.’ [Citation.] ‘That limitation
exists because of the difficulty in calculating whether a jury award is more or less
favorable than a settlement offer when the jury’s award encompasses claims that are not
one and the same with those the offer covers. [Citations.]’ [Citation.] If the settlement
offer includes ‘terms or conditions, apart from the termination of the pending action in
exchange for monetary consideration, that make it exceedingly difficult or impossible to

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determine the value of the offer to the plaintiff,’ the offer is invalid under section 998.
[Citation.] Requiring resolution of potential unfiled claims not encompassed by the
pending action renders the offer incapable of valuation.” (Ignacio, supra, 2 Cal.App.5th
at pp. 86–87.)
Under section 1542, “A general release does not extend to claims that the creditor
or releasing party does not know or suspect to exist in his or her favor at the time of
executing the release and that, if known by him or her, would have materially affected his
or her settlement with the debtor or released party.”
Discussion
In this case, the trial court reviewed Fresno’s offer, including its required waiver
of the protections afforded by section 1542, and concluded the offer was sufficiently
overbroad and vague to render it invalid. Fresno recognizes that broad general waivers,
including a section 1542 release, may be deemed invalid but contends the cases reaching
such results include additional facts, such as readily identifiable additional claims or
additional broad language offered as part of the settlement. Although Fresno’s analysis is
well taken, we ultimately agree with the trial court that under the facts of this case,
Fresno’s request for a general release and waiver of section 1542’s protections
invalidated its purported offer under section 998.
As explained in Ignacio, there is a historical debate regarding the appropriateness
of general releases in the context of section 998 offers which has been bypassed by
generally confirming the principle that section 998 releases must be limited to the claims
raised in the pending litigation. (Ignacio, supra, 2 Cal.App.5th at p. 89 [“In other words,
the Goodstein[3] majority upheld the validity of the section 998 offer by construing the
term ‘general release’ more narrowly than its then-established common meaning. The
rule to be taken from Goodstein is not that a ‘general release’ does not invalidate a

3 Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899.

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section 998 offer; the rule is that a release of unknown claims arising only from the claim
underlying the litigation itself does not invalidate the offer”].) Fresno claims its offer
meets this requirement and cites to cases such as Fassberg Construction Co. v. Housing
Authority of City of Los Angeles (2007) 152 Cal.App.4th 720 (Fassberg), Linthicum v.
Butterfield (2009) 175 Cal.App.4th 259 (Linthicum), and Goodstein as examples of
release language it claims is similar to that it employed. We do not agree that Fresno’s
offer is sufficiently similar to those found permissible above to render it proper.
In the context of Fresno’s arguments, Fassberg presents a favorable factual
situation. In that case, the defendant offered the plaintiff a substantial settlement offer “in
exchange for the entry of mutual requests for dismissal with prejudice of the entire action
and the execution of a proposed settlement agreement and mutual release.” (Fassberg,
supra, 152 Cal.App.4th at p. 765.) As the court noted, the release language was
“particularly exhaustive.” (Id. at p. 767.) It included broad language regarding
derivative actions, substantial lists of potentially affected parties, and also a section 1542
waiver. (Id. at p. 765.)
The trial court found the offer overbroad. The appellate court reversed. In doing
so, the court first noted that an offer should be “evaluated in light of all of its terms and
conditions,” (Fassberg, supra, 152 Cal.App.4th at p. 766) before explaining that the
release truly only affected two parties and specifically defined the subject matter of the
settlement “as ‘[a]ny and all claims, causes of action, matters alleged or which could have
been alleged in [this action], including the cross-complaint by the Housing Authority.’ ”
(Id. at p. 767.) This later language was particularly important, as the court explained it
constituted an “attempt to define the subject matter of the settlement and release to
encompass the whole of the action.” (Ibid.) Based on this, the court concluded that
“[a]bsent some indication of the existence of a valuable claim in favor of a related person
or entity, independent of Fassberg’s actual and potential claims arising from the subject

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matter of this action, that would be extinguished by the release, we conclude that the
release is not overbroad or incapable of valuation.” (Ibid.)
In this case, Fresno’s offer begins as a limited section 998 offer, seeking
settlement “in the above-entitled action pursuant to [s]ection 998” in “exchange for a
dismissal of plaintiff’s entire case with prejudice.” Had the offer stopped there, there is
no doubt it would have been sufficient. However, Fresno then continued to request an
additional “full release including [] Civil Code section 1542 waiver of all claims against”
Fresno. (Italics omitted.) This final clause could reasonably be read to extend well
beyond the claims asserted in the present litigation to include any and all other claims,
whether known or unknown, that Kennedy may have had against Fresno at the time.
Unlike Fassberg and the similar cases cited by Fresno, the language of the purported
offer contains no clear attempt to define the subject matter of the settlement as only those
claims part of the subject litigation.4 Rather, the offer appears to separate itself into an
offer to settle the current claims and a requirement that Kennedy release all other
potential actions. Thus, in its offer, Fresno appears to have reasonably sought to ensure
settlement of all potential claims, a common tactic to ensure no later litigation emerges.
However, in failing to specifically note that its offer was limited only to those claims
relating to the current action, for example those currently permitted to be raised between
the parties in the pending litigation, it strayed from the line of cases permitting potentially
broad general releases when the underlying subject matter is specifically defined and
instead utilized overbroad language that invalidated its settlement offer under

4 We note we agree generally with Linthicum’s statement that the general rule is not that an
“offer must contain any particular language.” (Linthicum, supra, 175 Cal.App.4th at p. 272.)
However, the language used must be sufficiently clear, in context, that courts can properly
evaluate the comparative value of the offer with the ultimate resolution; with the burden being
placed on the offering party to show such clarity. (Ignacio, supra, 2 Cal.App.5th at pp. 86–87.)
In this case, we conclude that, in context, the language Fresno utilized did not properly limit its
offer and left open the possibility of a full waiver of unknown and unasserted claims unrelated to
the pending litigation, rendering evaluation difficult if not impossible.

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section 998. The trial court thus correctly concluded that Kennedy’s failure to accept the
settlement offer did not trigger the cost shifting structure of section 998.
DISPOSITION
The judgment and order taxing costs are affirmed. Both parties shall bear their
own costs on appeal.

HILL, P.J.
WE CONCUR:

DETJEN, J.

SMITH, J.

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