Filed 12/24/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
KEVYN MENGES, an Incompetent Person,
etc.,
G057643 consol. w/ G058148
Plaintiff and Appellant,
(Super. Ct. No. 30-2012-00566882)
v.
OPINION
DEPARTMENT OF TRANSPORTATION,
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Craig L.
Griffin, Judge. Affirmed.
Cornelius P. Bahan for Plaintiff and Appellant.
Jeanne Scherer, Acting Chief Counsel, Jeffrey R. Benowitz, Deputy Chief
Counsel, Glenn B. Mueller and John Frederick Smith, Assistant Chiefs Counsel, Emily
D. W. Sweet and Patrick R. Boyne, Deputy Attorneys for Defendant and Respondent.
Kevyn Menges suffered catastrophic injuries in a motor vehicle accident.
Menges, through her guardian ad litem Susan Menges, sued the Department of
Transportation (Caltrans) for its negligent construction of an interstate off-ramp. Caltrans
moved for summary judgment, asserting design immunity. The trial court granted
Caltrans’s motion for summary judgment. On appeal, Menges asserts the court erred
because design immunity should not apply since the approved design plans were
unreasonable, and the construction of the interstate off-ramp did not match the previously
approved design plans. She also urges reversal because the court denied her oral request
for a continuance at the summary judgment hearing. Finally, she challenges the court’s
award of costs, arguing Caltrans’s Code of Civil Procedure section 998 offer was
unreasonable and invalid, and a portion of the cost award for expert witness fees should
have been disallowed. None of Menges’s arguments have merit, and we affirm the
judgment.
FACTS
I. Accident
On February 6, 2012, at approximately 10:40 in the morning, Menges was a
passenger in a friend’s car, headed home to San Clemente. It was daylight, the weather
was clear, the pavement was dry, and conditions were normal. The women were waiting
for the green light to start a left-hand turn from westbound Avenida Pico onto the
on-ramp to southbound Interstate 5 (I-5 freeway). After the light turned green and they
began their left turn, truck driver Gerald Pesicka struck them broadside with in his
tractor-trailer truck.
The truck was traveling in the number four lane on the I-5 freeway when it
took the Avenida Pico exit at 55-60 miles per hour. 1 A witness driving behind the truck
1
The trial court provided this helpful description: “The I-5 is five-lanes in
that section with the two right lanes having access to the off-ramp. The far right lane that
ends in the off-ramp, and the second lane from the right splits so that a driver can either
2
did not see any brake lights as it continued down the quarter-mile long off-ramp. Pesicka
passed another vehicle halfway down the off-ramp. That witness saw the truck swerve to
the left, straddle a curb, and then sideswipe a vehicle stopped at the bottom of the off-
ramp waiting to turn. The truck then crashed through a light standard, traveled into the
intersection, and broadsided the car carrying Menges and several other vehicles. A
witness watched the accident and reported, “he didn’t hear any horns, down shifting, nor
did he hear any skidding or screeching as [the truck] continued down the ramp.”
At the scene, Pesicka denied any recollection of the accident or the
moments leading up to it. He told the California Highway Patrol officer interviewing
him he was headed to Oceanside to pick up a load of cargo and had no reason to exit the
freeway at Avenida Pico. Pesicka’s drug and alcohol tests were negative. Pesicka
suffered a major stroke a day later, was hospitalized for emergency surgery, and
ultimately died after he was discharged.
II. Lawsuit and Procedural History
On May 4, 2012, Menges’s guardian ad litem filed suit against Pesicka and
others, eventually naming Caltrans. As to Caltrans, Menges asserted her injuries resulted
from a dangerous condition of public property. She contended “confusing” and
“deceiving” pavement striping, signage on the I-5 freeway at the top of the Avenida Pico
off-ramp, and striping of the city street intersection at the bottom, caused the accident.
She further alleged the striping and signage issues caused Pesicka to “mistakenly and
unintentionally” exit the I-5 freeway and careen down the off-ramp, leading to Menges’s
significant injuries.
drive down the off-ramp or continue southbound on the I-5. The off-ramp is
approximately 1/4–mile long from the freeway to a stoplight at the end, and has a decline
that allows a vehicle at the stoplight to make a left turn under the freeway. The off-ramp
splits from two into three lanes as it moves closer to the stoplight.”
3
III. Caltrans’s Motion for Summary Judgment
In July 2018, Caltrans moved for summary judgment based on the statutory
design immunity defense. It provided evidence the last improvement project at I-5 and
Avenida Pico was completed on September 10, 2008. That project was confirmed to
have been built in compliance with a set of Caltrans design plans approved for use in
September 2005. The project included new pavement delineation, signage elements
including the Avenida Pico off-ramp overhead sign and a “Must Exit” sign, and gore
point markings and lane striping on the road at the top and base of the off-ramp.
In support of its motion, Caltrans submitted the declaration of Ronald
Nelson, a traffic engineer expert witness, who opined as to the reasonableness of the
design and construction of I-5 at Avenida Pico. Menges opposed the motion and
submitted declarations from two of her own civil engineers critical of the design, Brad
Avrit and Edward Ruzak, and which Caltrans objected to.
Nelson submitted a reply declaration to rebut a new claim raised by Menges
that the 2008 project had not been constructed in accordance with the 2005 design plans.
Avrit, then submitted a supplemental declaration, which Caltrans also objected to.
The trial court granted Caltrans’s motion for summary judgment. It
determined design immunity applied because substantial evidence supported the
reasonableness of the design and Menges failed to establish the project was not built
according to plans.
Subsequently, Caltrans submitted a memorandum of costs, seeking to
recover $66,218.74. A portion of these costs was for expert witness fees accruing after
Menges rejected an April 23, 2014, $25,000 settlement offer from Caltrans, made
pursuant to Code of Civil Procedure section 998 (998 offer).2 The court determined the
998 offer was valid, and ultimately awarded Caltrans $42,926.05 in expert witness fees.
2
All further statutory citations are to the Code of Civil Procedure, unless
otherwise indicated.
4
This amount included $14,907.30 for Elevate Services to analyze Menges’s medical
records in anticipation of testimony regarding reasonableness of treatment, insurance
adjustments, and damages, as well as $9,608.75 for expert witness Mary Jesko, retained
to testify about Menges’s life care plan.
The court entered an amended judgment reflecting its cost award. We
consolidated Menges’s appeals from the grant of summary judgment and the cost award.
DISCUSSION
Menges contends the trial court erred by determining Caltrans was entitled
to summary judgment based upon design immunity. Specifically, she asserts the doctrine
should not apply because the design of the freeway off-ramp was unreasonable, and
Caltrans failed to follow the as-built plans. The court did not err.
I. Standard of Review and Pertinent Law
A grant of summary judgment is reviewed de novo, “considering all of the
evidence the parties offered in connection with the motion (except that which the court
properly excluded) and the uncontradicted inferences the evidence reasonably supports.”
(Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) “[T]he party moving for summary
judgment bears the burden of persuasion that there is no triable issue of material fact and
that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850, fn. omitted.) The moving party also “bears an initial burden
of production to make a prima facie showing of the nonexistence of any triable issue of
material fact; if he [or she] carries his [or her] burden of production, he [or she] causes a
shift, and the opposing party is then subjected to a burden of production of his own to
make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.)
‘“[T]he normal rules governing a motion for summary judgment, and
requiring its denial if any triable issue of fact appears, are not fully applicable [to cases
involving design immunity under Government Code section 830.6.] For example, the
defendant is not required to prove to the court that the design or plan was in fact a
5
reasonable one. Instead, the defendant is merely required to adduce any “substantial
evidence” that a reasonable public employee or legislative body could have approved the
plan or design used under [Government Code section] 830.6. Thus, when the defendant
files a motion for summary judgment, the existence of a possible conflict of evidence, as
shown by the proof submitted on the motion, will not create a triable issue on this aspect
of the defense that can defeat a summary judgment . . . .’ [Citation.]” (Wyckoff v. State
of California (2001) 90 Cal.App.4th 45, 50-51 (Wyckoff).) “We are not concerned with
whether the evidence of reasonableness is undisputed; the statute provides immunity
when there is substantial evidence of reasonableness, even if contradicted. [Citations.]”
(Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939-940 (Grenier).) “That a
plaintiff’s expert may disagree does not create a triable issue of fact.” (Id. at p. 941.)3
A court’s denial of an oral request to continue a summary judgment hearing
is reviewed for abuse of discretion. (Park v. First American Title Co. (2011) 201
Cal.App.4th 1418, 1428 (Park).) The validity of Caltrans’s 998 offer to compromise is
subject to de novo review. (Prince v. Invensure Ins. Brokers, Inc. (2018) 23 Cal.App.5th
614, 622.) However, the actual award and the reasonableness of the offer are reviewed
for abuse of discretion. (Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th
632, 647.)
II. Summary Judgment Analysis
Menges raises two challenges to the trial court’s grant of summary
judgment. She asserts her own experts’ testimony, which established the design was
“unreasonable,” precluded the application of design immunity. She also contends design
immunity should not apply because Caltrans did not construct the off-ramp in
conformance with the design plans. Her arguments lack merit.
3
Menges’s briefing on appeal omits this legal standard applicable to design
immunity cases entirely, focusing only on a traditional summary judgment analysis.
6
A public entity may be liable for personal injuries caused by the “dangerous
condition” of its property. (Gov. Code, §§ 830, 835.) An entity may avoid liability,
however, through the affirmative defense of the design immunity. (Gov. Code, § 830.6.)
“A public entity claiming design immunity must establish three elements: (1) a causal
relationship between the plan or design and the accident; (2) discretionary approval of the
plan or design prior to construction; and (3) substantial evidence supporting the
reasonableness of the plan or design. [Citations.]”4 (Cornette v. Department of
Transportation (2001) 26 Cal.4th 63, 66.)
“Any substantial evidence” to support the third element of design immunity
is “evidence of solid value and which reasonably inspires confidence. [Citation.]”
(Grenier, supra, 57 Cal.App.4th at p. 939.) “‘[A]s long as reasonable minds can differ
concerning whether a design should have been approved, then the governmental entity
must be granted immunity. The statute does not require that property be perfectly
designed, only that it be given a design which is reasonable under the circumstances.’
[Citation.]” (Id. at p. 941.) “We are not concerned with whether the evidence of
reasonableness is undisputed; the statute provides immunity when there is substantial
evidence of reasonableness, even if contradicted.” (Id. at p. 940.) Furthermore, “That a
plaintiff’s expert may disagree does not create a triable issue of fact. [Citations.]” (Id.
at p. 941.)
A. Reasonableness of the Design
Menges first asserts Caltrans failed to carry its burden of establishing the
design immunity defense. She asserts that because her experts disagreed with Caltrans’s
expert there was no substantial evidence supporting the reasonableness of the design.
Not so.
4
The trial court determined, and Menges concedes, Caltrans established the
first two elements of the statutory design immunity.
7
As discussed previously, a case involving design immunity does not
function as a typical summary judgment case would. The court’s role in evaluating the
third element of the design immunity is not to provide a de novo interpretation of the
design, but instead to decide whether there is “any substantial evidence” supporting its
reasonableness. (Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 525-526
(Ramirez).) “Any substantial evidence” to establish this third element of the immunity
may consist of the following: Discretionary approval of the design plans themselves
(Grenier, supra, 57 Cal.App.4th at pp. 941-942); the expert opinion of a civil engineer as
to the reasonableness of the design (id. at p. 941); or evidence the design or plan complies
with prevailing professional standards (Weinstein v. Department of Transportation (2006)
139 Cal.App.4th 52, 59 (Weinstein)). “A mere conflict in the testimony of expert
witnesses provides no justification for the matter to go to a lay jury who will then second-
guess the judgment of skilled public officials. [Citation.]” (Ramirez, supra, 192
Cal.App.3d at pp. 525-526.)
Menges, apparently ignoring the proper standard, asks us to consider
evidence of how the off-ramp looked and testimony from her expert witnesses to
determine whether the design was reasonable. However, given our standard of review in
this specific scenario, we are unable to interpret that evidence de novo. Indeed, as
detailed below, Caltrans provided substantial evidence to support discretionary approval
of the design plans, an expert opinion as to the reasonableness of the design, and
evidence the design complied with California’s approved standards.
Caltrans provided evidence demonstrating Mostafa Aliakbarzadeh, as the
Caltrans civil engineer responsible for the engineering design work on the Project,
exercised his discretionary authority to approve the relevant pavement delineation and
signage plans in advance of construction. Aliakbarzadeh’s 2005 approval of the relevant
design plans alone is sufficient to establish the third element of the design immunity.
(Grenier, supra, 57 Cal.App.4th at pp. 941-942.)
8
Caltrans’ expert witness Nelson reviewed several items to form his
analysis, including the operative complaint, the traffic collision report and photographs
prepared by the California Highway Patrol, discovery responses, a land survey, the as-
built design plans, and the version of the California Manual on Uniform Traffic Control
Devices (MUTCD)5 in effect at the time the plans were completed. He also conducted a
site inspection. Nelson concluded the design plans for the construction of the
improvements that were in place at the time of this accident were done with reasonable
professional engineering judgment in design and construction, including compliance with
the relevant portions of the MUTCD. Nelson’s expert opinion was further evidence
establishing the third element of the statutory design immunity. (Grenier, supra, 57
Cal.App.4th at pp. 941-942; Weinstein, supra, 139 Cal.App.4th at p. 59.)
Caltrans presented substantial evidence of the reasonableness of the design.
The trial court properly granted the motion for summary judgment based upon statutory
design immunity.6
B. Conformity of Off-Ramp to Design Plans
Menges contends the trial court erred by granting Caltrans design immunity
because an alleged lack of conformance between the plans and the actual construction
precluded the application of the design immunity to this case. She lists three elements of
the freeway in the vicinity of the accident that were not in exact conformance with
Caltrans’s design plans. Specifically, Menges asserts: (1) A “Must Exit” sign was not
5
The MUTCD provides standards and specifications guidance for all official
traffic control devices in California, in accordance with Vehicle Code section 21400.
6
Menges suggests the trial court previously “found” the facility was
“patently dangerous” when granting codefendant Brutoco Engineering & Construction’s
(Brutoco) motion for summary judgment in 2015. Not so. The court stated, “[Menges]
failed to raise a triable issue of material fact on whether the alleged defects were latent or
patent, and therefore Brutoco is entitled to the benefit of the completed-and-accepted
doctrine as a matter of law.”
9
moved as required by the plans; (2) the gore area7 was not striped to plan specifications;
and (3) the channelizer striping was incorrect. We find no error.
Menges based her arguments upon her experts’ declarations. Caltrans filed
written objections to these declarations based on a lack of foundation and improper legal
conclusions. Caltrans concedes the trial court did not make specific rulings on its
objections, thereby preserving them on appeal. (Reid v. Google, Inc. (2010) 50 Cal.4th
512, 534.)
While the trial court did not make an explicit ruling on the evidentiary
objections, in its ruling on the motion, it stated as follows: “[Menges] asserts that design
immunity does not apply to certain of the defects because they were not built according
to the approved plans. In support of this assertion, [Menges] asserts (a) [Caltrans] failed
to move the ‘Must Exit Sign’ further north as called for in the plans; (b) the gore area was
built incorrectly, was not chevron striped, and not striped to plan specifications; and (c)
the channelizer striping was incorrect. [¶] The problem with each of [these] assertions is
they are supported only by expert conclusions with no foundation or explanation as to
how the experts came to those conclusions. [¶] ‘[E]xpert opinions, even though
uncontradicted, are worth no more than the reasons and factual data upon which they are
based.’ [Citation.] ‘If his opinion is not based upon facts otherwise proved . . . it cannot
rise to the dignity of substantial evidence.[’] [Citations.] [¶] In contrast, [Caltrans’s]
substantial evidence demonstrates the gore point, channelizer, and ‘Must Exit’ sign were
built and placed substantially in accordance with the plans.”
A party “‘“cannot avoid summary judgment by asserting facts based on
mere speculation and conjecture, but instead must produce admissible evidence raising a
trial issue of fact. [Citation.]” [Citation.]’ [Citation.]” (Christina C. v. County of
Orange (2013) 220 Cal.App.4th 1371, 1379.) Similarly, a plaintiff cannot “manufacture
7
The gore area is a triangular space separating I-5 and the off-ramp.
10
a triable issue of fact through use of an expert opinion with self-serving conclusions,
devoid of any bias, explanation or reasoning. [Citation.]” (McGonnell v. Kaiser Gypsum
Co., Inc., et al. (2002) 98 Cal.App.4th 1098, 1106.) We agree with the trial court’s
reasoning expressed in its tentative decision, discounting the declarations of Ruzak and
Avrit as conclusory and lacking foundation.
Menges relies on the following portions of Ruzak’s declaration to support
her arguments on appeal: “The [g]ore was built incorrectly in that there was no chevron
striping within the gore and the striping is wrong/off as shown on the [a]s-[b]uilt plans.
The [c]hannelizer striping also does not comport with the [a]s-[b]uilt plans. It would
have been acceptable to deviate in this manner if the Avenida Pico signage was correct.
However, these striping deviations in concert with the unreasonable negligent signage at
this off ramp area created a further trap and dangerous condition for motorists.” Menges
makes no argument as to how or why this expert opinion was supported by evidence or
more than a mere speculation. There is simply no explanation as to why we should
consider this evidence.
Similarly, Menges lists Avrit’s various opinions disagreeing with Nelson
and opining, without citation to evidence, there were significant differences between the
approved design and the condition of the roadway. Menges fails to explain how the
opinions were formed, what evidence they were based upon, or why we should overrule
Caltrans’s objections to those opinions. Instead, Menges cites to the standard of review
on a summary judgment motion, stating her burden is only to show a triable issue of fact.
Menges’s failure to address the specific objections on appeal is telling. Caltrans’s
objections numbers three and four to the initial Ruzak and Avrit declarations and
objections to Avrit’s supplemental declaration are convincing.
Our dissenting colleague contends the substantial evidence standard only
applies to the “reasonableness” element of the design immunity defense, and not to
related but distinct issues, including loss of design immunity as a result of a
11
subsequently-developing dangerous condition, or (as presented by this case) non-
conformity of the construction itself with the plans. (Citing Cornette, supra, 26 Cal.4th
at pp. 72-73.) Cornette, however, did not involve the issue of conformity to approved
plans. Instead, it applied the elements of a loss of design immunity due to changed
conditions, which is not at issue in this case. Cornette articulates rules applicable for
determining if an existing design immunity has been lost. Once design immunity has
been established, to demonstrate loss of design immunity a plaintiff must establish three
elements: (1) the plan or design has become dangerous because of a change in physical
conditions; (2) the public entity had actual or constructive notice of the dangerous
condition thus created; and (3) the public entity had a reasonable time to obtain the funds
and carry out the necessary remedial work to bring the property back into conformity
with a reasonable design or plan, or the public entity, unable to remedy the condition due
to practical impossibility or lack of funds, had not reasonably attempted to provide
adequate warnings. (Id. at p. 72.) The Cornette court explained, “The questions involved
in loss of design immunity, e.g., whether the plan or design has become dangerous
because of a change of physical conditions, are not the identical questions considered by
the government officers who adopted or approved the plan.” (Id. at p. 73.)
Here, in contrast to Cornette, Menges does not claim there was a change in
conditions such that Caltrans lost its design immunity. Instead, she argues Caltrans never
established a design immunity defense because the construction did not conform to the
approved plans. In this case, the Wyckoff case applies because it explains the appropriate
test for deciding the initial question of design immunity. “[I]n order to avail itself of the
affirmative defense of design immunity, the public entity must demonstrate that the
improvement as designed substantially ‘conformed to a design approved by the public
entity vested with discretionary authority.’” (Wyckoff, supra, 90 Cal.App.4th at p. 52.)
Caltrans did just that.
12
In any event, even if we were to adopt our dissenting colleague’s standard,
as well as assume the Ruzak and Avrit declarations were properly admitted and relied
upon, they do nothing to change the merits of the issue. “[S]ubstantial[] conformance”
with the design plans is all that is required; a minor deviation from the approved plan as
designed will not preclude the application of the immunity. (Wyckoff, supra,
90 Cal.App.4th at p. 52.) Caltrans’s evidence demonstrated there was substantial
conformance with the design plans. As to the gore area, Nelson statedthe as-built plans
did not call for chevrons in the gore area. Nelson also concluded, after measuring the
actual post-construction location and distance of the “Must Exit” sign in the field, there
was a four-foot difference between the plans and the as-built condition. He further stated
this variance was well within reasonable construction tolerances for such an installation.
Finally, Nelson explained the channelizer striping was done in accordance with MUTCD,
in effect at the time of the plan’s approval. He opined the striping was in substantial
conformance with the plans, as confirmed by a site examination and from photographs.
In his declaration, Ruzak concedes deviation with the striping would be
acceptable if there was no issue with the signage. Avrit’s declaration focused on the
signage issue, opining, “Caltrans did not construct the subject project in exact compliance
with their own approved design plans.” This, of course, misstates the standard because
substantial conformity, not exact, is all that is required. Caltrans’s extensive expert
evidence was more than a mere stamp on the plans. Because Menges’s experts failed to
raise a triable issue of material fact that Caltrans did not substantially conform to the
design plans, summary judgment was appropriate.
III. Denial of Request for Continuance
Menges further claims the trial court committed reversible error by refusing
her oral request to continue the motion for summary judgment made the day of the
hearing. Her claim has no merit.
13
“‘If it appears from the affidavits submitted in opposition to a motion for
summary judgment or summary adjudication or both that facts essential to justify
opposition may exist but cannot, for reasons stated, then be presented, the court shall
deny the motion, or order a continuance to permit affidavits to be obtained or discovery
to be had or may make any other order as may be just. The application to continue the
motion to obtain necessary discovery may also be made by ex parte motion at any time
on or before the date the opposition response to the motion is due.’ ([§] 437c, subd.
(h).)” “When a party makes a good faith showing by affidavit demonstrating that a
continuance is necessary to obtain essential facts to oppose a motion for summary
judgment, the trial court must grant the continuance request. [Citation.] ‘Continuance of
a summary judgment hearing is not mandatory, however, when no affidavit is submitted
or when the submitted affidavit fails to make the necessary showing under [ ] section
437c, subdivision (h). [Citations.]’” (Park, supra, 201 Cal.App.4th at pp. 1427-1428.)
Menges made an oral request for continuance request at the end of the
summary judgment hearing. Her need for the continuance was to submit a third expert
declaration regarding the location of the “Must Exit” sign. The trial court, however, had
already determined the difference between the planned location and its actual location
was not significant to the motion. Furthermore, Menges makes no effort to explain why a
continuance would provide additional information, where the parties had extensively
briefed and submitted multiple expert declarations on that precise issue. The continuance
request was untimely, failed to follow proper procedure, and lacked an essential basis.
We find no abuse of discretion.
IV. Costs and Fee Award
Menges challenges the trial court’s award of expert witness fees to
Caltrans. She asserts the 998 offer was not statutorily compliant and was unreasonable
and the award of $24,516.05 for work performed by Elevante and Jesko was excessive.
We find no error and affirm the award.
14
“An offer to compromise under section 998 must be sufficiently specific to
allow the recipient to evaluate the worth of the offer and make a reasoned decision
whether to accept the offer.” (Fassberg Construction Co. v. Housing Authority of City of
Los Angeles (2007) 152 Cal.App.4th 720, 764.) The inclusion of nonmonetary terms and
conditions does not render a 998 offer invalid; but those terms or conditions must be
sufficiently certain and capable of valuation to allow the court to determine whether the
judgment is more favorable than the offer. (Barella v. Exchange Bank (2000) 84
Cal.App.4th 793, 799-801.)
Menges attacks the 998 offer, claiming it was void because it contemplated
a dismissal in exchange for a payment, not an entry of judgment, it was conditioned on
the execution of a release, and the terms were uncertain. A 998 offer that includes a
dismissal with prejudice or the execution of a release as a settlement term is valid.
(Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1130.)
Furthermore, the terms of the 998 offer here were certain. Specifically, the
offer provided as follows: “This offer is subject to the following conditions: [¶] 1. This
is an offer to settle, not an offer to have judgment taken. [¶] 2. This offer is subject to a
good faith determination order. [¶] 3. [Menges] must dismiss her complaint for damages
against [Caltrans], in its entirety, with prejudice. [¶] 4. [Menges] must execute a release
of all claims in favor of [Caltrans]. [¶] 5. The parties will bear their own costs. [¶]
6. [Menges] will be liable for all medical bills, liens or other financial obligations
resulting from the accident.” The terms were clear and sufficiently certain.
Next, we turn to Menges’s claim the 998 offer was unreasonable and not
made in good faith. Because Caltrans prevailed on its motion for summary judgment, it
constituted prima facie evidence the $25,000 offer was reasonable. (Carver v. Chevron
U.S.A., Inc. (2002) 97 Cal.App.4th 132, 152.) Additional factors demonstrating good
faith include the offer was not made until almost two years after the complaint was filed
and Caltrans’s litigation position had been made clear. In addition, Caltrans provided
15
Menges with a letter detailing why it did not believe it had liability. Menges fails to point
to evidence demonstrating the trial court abused its discretion, instead merely contending
she viewed the offer as invalid and not in good faith. Menges failed to carry her burden.
Finally, we turn to Menges’s claim the expert witness costs awarded were
excessive and unwarranted, requiring reduction. Section 998 provides: “the court or
arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover
postoffer costs of the services of expert witnesses . . . actually incurred and reasonably
necessary in either, or both, preparation for trial or arbitration, or during trial or
arbitration, of the case by the defendant.” (§ 998, subd. (c)(1).)
Menges asserts the award of costs was unreasonable because it was for
unnecessary medical records review. Her assertions, however, are unsupported by factual
or legal citations. As a result, she fails to carry her burden to demonstrate abuse of
discretion. “‘To demonstrate error, appellant must present meaningful legal analysis
supported by citations to authority and citations to facts in the record that support the
claim of error. [Citations.]’ [Citation.] ‘Mere suggestions of error without supporting
argument or authority other than general abstract principles do not properly present
grounds for appellate review.’ [Citation.] ‘Hence, conclusory claims of error will fail.’
[Citation.]” (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457.)
DISPOSITION
The judgment is affirmed. Caltrans shall recover its costs on appeal.
O’LEARY, P. J.
I CONCUR:
BEDSWORTH, J.
16
THOMPSON, J., dissenting. I respectfully dissent. Design immunity is only a defense
if the improvements are constructed in substantial conformity with the approved design.
If Caltrans designed an off-ramp but constructed a wall instead, the reasonableness of the
off-ramp design would have no bearing on its liability if someone drives into the wall.
In this case, Menges contends the freeway off-ramp was not constructed in
substantial conformity with the approved design. The parties offered conflicting expert
opinions on this point that show triable issues of material fact which cannot be resolved
by summary judgment. So a trial is required to determine if design immunity applies.
The majority’s contrary conclusion is wrong for three reasons. First, the
majority erroneously sustains the objections to Menges’s expert declarations. Second,
the majority incorrectly applies the substantial evidence standard to the substantial
conformity issue. Third, the majority mischaracterizes and improperly weighs the
opinions of Menges’s experts. I will discuss each of these mistakes in turn.
1. The Evidentiary Objections to Menges’s Expert Declarations Must be Overruled.
Menges provided two expert declarations to support her contention the off-
ramp was not constructed in substantial conformity with the approved design. These
expert declarations followed the familiar industry-standard format for presenting expert
opinions in support of or opposition to a motion for summary judgment. The experts
described their qualifications and experience, listed the materials they reviewed and the
investigative steps they undertook, and then set forth their opinions.
Caltrans objected to these expert declarations on lack of foundation and
improper legal conclusion grounds. The majority acknowledges the trial court never
ruled on these objections. But the majority does not acknowledge that, as a result, we are
required to presume the trial court overruled these objections. (Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 534.) Plus, the standard applicable to our review of the trial
court’s presumed ruling is unsettled. The majority applies de novo review (without
saying so), but the abuse of discretion standard is probably applicable. (Id. at 535.)
1
In any event, Caltrans’s evidentiary objections must be overruled.
Menges’s experts did exactly what the law requires to establish the foundation for their
opinions by setting forth their credentials (which Caltrans does not challenge), and the
materials reviewed and investigation undertaken (which Caltrans also does not
challenge). Thus, there is no lack of foundation. As for their opinions themselves,
Menges’s experts identified three specific points of departure from the approved design.
These are plainly admissible expert opinions, not inadmissible legal conclusions.
2. The Substantial Evidence Standard Does Not Apply to Substantial Conformity.
The majority concludes summary judgment was proper, even if Menges’s
expert declarations are considered, since substantial evidence shows the off-ramp was
constructed in substantial conformity with the approved design. This conclusion is
wrong. The substantial evidence standard applies only to the reasonableness element of
the design immunity defense. It does not apply to the question of whether the off-ramp
was constructed in substantial conformity with the approved design. Here is why.
“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.” (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 69
(Cornette).) “[A] public entity claiming design immunity must establish three elements:
(1) a causal relationship between the plan or design and the accident; (2) discretionary
approval of the plan or design prior to construction; and (3) substantial evidence
supporting the reasonableness of the plan or design. [Citations.]” (Ibid., italics added.)
The substantial evidence standard in the reasonableness element is from
Government Code section 830.6 (section 830.6), which provides immunity “if the trial or
appellate court determines that there is 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.”
2
Based on the plain language of section 830.6 and the rationale for design
immunity, I conclude the substantial evidence standard applies only to the reasonableness
(i.e., third) element of the affirmative defense; not to any substantial conformity issues
related to the other elements of the affirmative defense or the loss of design immunity.
Cornette supports my conclusion, and Wyckoff v. State of California (2001) 90
Cal.App.4th 45 (Wyckoff ) does not support the majority’s contrary conclusion.
A. Cornette
Cornette concerned an automobile accident and the plaintiffs’ claim against
Caltrans, which was based on the allegedly dangerous condition of a highway created by
the absence of a median barrier at the location of the accident. (Cornette, supra, 26
Cal.4th at p. 67.) The plaintiffs stipulated the freeway design without a median barrier
was reasonable when it was built, but contended any design immunity had been lost
because the physical conditions had changed in the years since. (Ibid.)
The trial court bifurcated the design immunity defense and agreed to try
that issue first. The trial court then ruled none of the issues relating to the existence of
design immunity or its loss would be submitted to the jury; rather, these issues would be
tried by the court as the trier of fact. (Cornette, supra, 26 Cal.4th at p. 67.) This was
done over the objection of the plaintiffs who contended that, with the exception of the
third element of design immunity (substantial evidence of the reasonableness of the
design), all issues related to design immunity or its loss should be tried to the jury. (Ibid.)
Resolving factual disputes in favor of Caltrans, the trial court found
Caltrans had established design immunity and had not lost it. (Cornette, supra, 26
Cal.4th at p. 68.) Judgment was entered for Caltrans, the plaintiffs appealed, and the
Court of Appeal reversed and remanded for a new trial. (Ibid.) The Court of Appeal held
the trial court had improperly denied the plaintiffs their right to a jury trial of the disputed
issues pertaining to the question whether Caltrans had lost its design immunity. (Ibid.)
Our Supreme Court affirmed the judgment of the Court of Appeal. (Ibid.)
3
The Supreme Court stated: “The question presented by this case is whether
the Legislature intended that the three issues involved in determining whether a public
entity has lost its design immunity should also be tried by the court. Our examination of
the text of section 830.6, the legislative history of that section, and our prior decisions
leads us to the conclusion that, where triable issues of material fact are presented, as they
were here, a plaintiff has a right to a jury trial as to the issues involved in loss of design
immunity.” (Cornette, supra, 26 Cal.4th at pp. 66-67.)
The Supreme Court reasoned: “[T]he one element of design immunity the
Legislature did expressly reserve for the court, the existence of substantial evidence
supporting the reasonableness of the adoption of the plan or design, differs significantly
from the three elements of loss of design immunity. ‘[I]n enacting section 830.6, the
Legislature was concerned lest juries be allowed to second-guess the discretionary
determinations of public officials by reviewing the identical questions of risk that had
previously been considered by the government officers who adopted or approved the
plan.’ (Baldwin [v. State of California (1972)] 6 Cal.3d [424,] 434].) The questions
involved in loss of design immunity, e.g., whether the plan or design has become
dangerous because of a change of physical conditions, are not the identical questions
considered by the government officers who adopted or approved the plan. Therefore, the
Legislature would arguably not have had the same rationale for taking such questions
away from the jury. Again, ‘where experience has revealed the dangerous nature of the
public improvement under changed physical conditions, the trier of fact will not simply
be reweighing the same technical data and policy criteria which went into the original
plan or design. Rather, there will then be objective evidence arising out of the actual
operation of the plan—matters which, of necessity, could not have been contemplated by
the government agency or employee who approved the design. No threat of undue
interference with discretionary decision-making exists in this situation.’ ([Baldwin,] at p.
435.)” (Cornette, supra, 26 Cal.4th at p. 73.)
4
In sum, Cornette held only the reasonableness (third) element of the design
immunity defense was a legal issue to be tried by the court under the substantial evidence
standard in section 830.6. Cornette refused to extend the substantial evidence standard to
the first two elements of the design immunity defense or to the loss thereof, noting courts
“may not rewrite a statute, either by inserting or omitting language, to make it conform to
a presumed intent that is not expressed.” (Cornette, supra, 26 Cal.4th at pp. 73-74.)
I will now demonstrate: (a) Menges’s claim in this case is essentially the
same as the plaintiffs’ claim in Cornette; (b) the reasoning in Cornette applies with equal
force here; and (c) the same result must therefore obtain.
Menges’s claim here is indistinguishable from the plaintiffs’ claim in
Cornette. Menges claims any “design immunity was lost” by the time of the accident
because the off-ramp was not constructed in substantial conformity with the approved
design. (Appellant’s Opening Brief, p. 40.) In Cornette, the plaintiffs claimed any
design immunity was lost by the time of the accident because the traffic volume and the
number of cross-median accidents significantly increased. So here, as in Cornette, the
core claim is that any design immunity was lost because of changed physical conditions.
Hence, the main legal question presented here is the same as in Cornette—
whether the Legislature intended that the three issues involved in determining whether a
public entity has lost its design immunity should also be tried (or summarily adjudicated)
by the court using the substantial evidence standard provided in section 830.6.1
1
To demonstrate loss of design immunity a plaintiff must establish: (1)
the plan or design has become dangerous because of a change in physical conditions; (2)
the public entity had actual or constructive notice of the dangerous condition thus
created; and (3) the public entity had a reasonable time to obtain the funds and carry out
the necessary remedial work to bring the property back into conformity with a reasonable
design or plan, or the public entity, unable to remedy the condition due to practical
impossibility or lack of funds, had not reasonably attempted to provide adequate
warnings. (Cornette, supra, 26 Cal.4th at p. 67; Baldwin v. State of California (1972) 6
Cal.3d 424, 438 (Baldwin).)
5
And the reasoning in Cornette applies here too. It boils down to this: The
existence of substantial evidence supporting the reasonableness of the approved design
(the third element of the design immunity defense), differs significantly from the other
two elements of the defense and from the three elements of loss of design immunity. In
enacting section 830.6, the Legislature was concerned that juries would second-guess the
discretionary determinations of public officials by reviewing the identical questions of
risk that had previously been considered by the public officials who approved the design.
Whether the off-ramp became dangerous because it was not constructed in
substantial conformity with the approved design is not the identical question considered
by the Caltrans employees who approved the design. Therefore, the Legislature would
not have the same rationale for taking such questions away from the jury. Again, where
experience has revealed the dangerous nature of the off-ramp under changed physical
conditions, the trier of fact will not simply be reweighing the same technical data and
policy criteria which went into approving the design. Rather, there will then be objective
evidence arising out of the actual operation of the plan—matters which, of necessity,
could not have been contemplated by the Caltrans employees who approved the design.
So no threat of undue interference with discretionary decision-making exists in this case.
Accordingly, the holding of Cornette fits like a glove, “where triable issues
of material fact are presented, as they were here, a plaintiff has a right to a jury trial as to
the issues involved in loss of design immunity.” (Cornette, supra, 26 Cal.4th at p. 67.)
The majority’s purported distinctions between this case and Cornette are
unavailing and warrant no discussion beyond the points set out in the preceding pages.
The majority here repeats the very same mistakes this court made in
Higgins v. State of California (1997) 54 Cal.App.4th 177, 184 (Higgins) which stated:
“Section 830.6 design immunity . . . is ordinarily raised on a motion for summary
judgment or nonsuit; the court decides whether there is sufficient evidence to support it.
[Citation.] It is error to submit the issue to a jury. [Citation.]”
6
Higgins went on to apply the substantial evidence standard to all three
elements of the design immunity defense, and to all three elements of the loss of design
immunity. (Higgins, supra, 54 Cal.App.4th at pp. 185-189.)
Cornette held this was error after Baldwin, in which the Supreme Court
ruled design immunity could be lost due to changed conditions, thus overruling its earlier
decisions (e.g., Cabell v. State of California (1967) 67 Cal.2d 150) that had held design
immunity lasted forever. (Baldwin, supra, 6 Cal.3d at pp. 438-439.)
Cornette acknowledged that after Baldwin was decided several Courts of
Appeal, including this court in Higgins, had held that all three of the elements necessary
to establish design immunity are legal issues for the court to decide under the substantial
evidence standard. (Cornette, supra, 26 Cal.4th at p. 74.) However, Cornette observed,
this line of cases, including Higgins, mistakenly relied on one of two earlier cases:
Cameron v. State of California (1972) 7 Cal.3d 318 (Cameron); or Mozzetti v. City of
Brisbane (1977) 67 Cal.App.3d 565 (Mozzetti). (Cornette, at p. 74.)
Regarding Cameron, the Supreme Court said it had reversed the trial
court’s ruling the state had established all the elements of the design immunity defense,
because the state had no evidence the improvements were constructed in conformity with
the approved design. (Cornette, supra, 26 Cal.4th at p. 75.) Also: “An appreciation of
the procedural context of the case is critical to a proper understanding of our decision in
Cameron. We did not say or even suggest that the first two elements of design immunity,
much less the three elements required to prove loss of design immunity, were issues of
law for the court to decide if it were not ruling on a motion for a directed verdict.” (Ibid.)
Regarding Mozzetti, the Supreme Court said the Court of Appeal statement
that design immunity is a legal issue to be tried by the court was dictum, stating: “The
Court of Appeal . . . was simply not presented with the question whether the elements
involved in loss of design immunity should be presented to the jury when, as here, the
evidence as to those elements is disputed.” (Cornette, supra, 26 Cal.4th at p. 74.)
7
All told, the majority here, like Higgins, violates Cornette in two critical
respects: (1) Cornette held only the reasonableness element of the design immunity
defense is a legal issue to be tried by the court under the substantial evidence standard;
and (2) Cornette refused to extend the court trial/substantial evidence aspects of section
830.6 to the loss of design immunity. (Cornette, supra, 26 Cal.4th at pp. 73-74.)
Moreover, even if we could ignore the clear commands of our Supreme
Court in Cornette, the majority’s application of the substantial evidence standard in this
case is plainly inconsistent with the unambiguous intent of section 830.6. Unlike cases
involving criticisms of the design itself, no considered policy-making decision of a public
official is at stake when courts evaluate substantial conformity with the approved design.
There are no competing subjective criteria to be weighed. Instead, what is presented is a
question of fact: were the improvements constructed in substantial conformity with the
approved design, or were there material deviations? And the normal rules requiring
denial of summary judgment if any triable issue of fact appears, are fully applicable.
Coincidentally, the specific facts of this case also illustrate the error in the
majority’s reasoning. Regarding the third element of the design immunity defense
(reasonableness), the majority writes that Caltrans’s civil engineer’s approval of the
design plans is enough to establish the reasonableness of the design for immunity
purposes. As far as it goes, this is a correct statement of the law on reasonableness of the
design—a civil engineer’s stamp of approval is enough. (See, e.g., Grenier v. City of
Irwindale (1997) 57 Cal.App.4th 931, 941-942.)
Of course, this makes sense given the purpose of the design immunity
statute, which is to privilege the considered decisions of public officials in designing
public improvements against second-guessing by a jury. The signature of a licensed civil
engineer on the plans demonstrates the design is arguably reasonable (because it is
supported by the opinion of at least one expert) and Caltrans accordingly receives design
immunity for all features of the improvements consistent with the approved design.
8
But the plans in evidence in this case also contain a second stamp: a stamp
of a subsequent civil engineer, noting that the plans are “as-builts,” meaning the as-built
condition of the off-ramp reflected on the plans substantially conformed to the approved
design. Applying the majority’s reasoning, this stamp, by itself, grants Caltrans total
immunity from any claim the off-ramp was not constructed in substantial conformity with
the approved design. This immunity would exist even if Caltrans had built a wall instead.
In fact, by the majority’s reasoning, once Caltrans proffered the as-built
plans, it was entitled to summary judgment, notwithstanding evidence of the changed
physical condition of the off-ramp. The actual condition of the off-ramp at the time of
the accident, as demonstrated by photographs, video, diagrams, etc., would be ignored
because the as-built plans themselves are substantial evidence of the condition of the off-
ramp. That would certainly be advantageous for Caltrans, but it is not the law.
B. Wyckoff
The majority concludes Wyckoff, not Cornette, provides the appropriate
standard for deciding the design immunity questions presented in this case. Not so.
In Wykoff, the plaintiff was injured and his wife and two children were
killed when a driver heading northbound on a freeway crossed the center median and
crashed head-on into the plaintiff’s southbound vehicle. “Plaintiff sued the State of
California (State) for damages for personal injury and wrongful death on the theory that
the lack of a center median barrier at the collision site constituted a dangerous condition
of public property.” (Wyckoff, supra, 90 Cal.App.4th at p. 49.)
“The trial court granted summary judgment for the State on the ground of
design immunity (Gov. Code, § 830.6).” (Wyckoff, supra, 90 Cal.App.4th at p. 49.) The
plaintiff appealed, contending (1) the State failed to establish the design immunity
affirmative defense, or (2) if it did establish initial design immunity, it had lost that
immunity by the time of the accident because of changed conditions at the accident site.
(Ibid.) The Court of Appeal rejected these contentions and affirmed. (Id. at p. 63.)
9
The majority’s reliance on Wyckoff is misplaced for at least three reasons.
First, Wyckoff was decided before, and therefore without the benefit of,
Cornette. As such, Wyckoff provides no basis for distinguishing Cornette from the
present case. Moreover, Wyckoff is a Sixth District case, and at that time the relevant
precedent in that district was Uyeno v. State of California (1991) 234 Cal.App.3d 1371,
which erroneously stated that all design immunity questions were to be decided by the
court. The Supreme Court in Cornette listed Uyeno with Higgins among the line of cases
that made this error based on Mozzetti, and Cameron, effectively abrogating this entire
line of cases as discussed above. (Cornette, supra, 26 Cal.4th at p. 74, fn. 3.)
And, if there were any doubt Wyckoff is no longer good law, Wyckoff
quoted this court’s abrogated Higgins decision on exactly this point. (Wyckoff, supra, 90
Cal.App.4th at p. 52.) Wyckoff went on to apply the substantial evidence standard to the
loss of design immunity claim, directly contradicting Cornette. (Wyckoff, supra, 90
Cal.App.4th at p. 60.) To put it bluntly, Wyckoff is bad law. It was overruled by our
Supreme Court in Cornette, and the majority blunders in relying on it.
Second, even if Wyckoff were still good law, the Wyckoff court was not
faced with any meaningful factual dispute over substantial conformity with the approved
plans, and thus did not actually apply the substantial evidence standard to that issue. The
factual dispute in Wyckoff was over the width of a median designed to be 46 feet wide.
(Wyckoff, supra, 90 Cal.App.4th at p. 52.)
The experts on both sides and the highway patrol officer who prepared the
collision report all measured the median and reported results ranging from 45 feet, 1 inch
to 45 feet, 10 inches. (Wyckoff, supra, 90 Cal.App.4th at p. 53.) The Wyckoff court did
not resolve this factual dispute. Instead, it concluded the median was constructed in
substantial conformity with the approved plans regardless of whose expert was believed.
(Id. at pp. 52-55.) Here, by contrast, Menges’s experts detailed what they opined were
three substantial and meaningful deviations from the approved plans.
10
Third, the majority argues this case and Wyckoff both concern a claimed
failure to establish the design immunity defense, while Cornette concerned a claimed loss
of design immunity. But Wyckoff and this case, like Cornette, also involved a claimed
loss of design immunity due to changed conditions, to which the Wyckoff court
erroneously applied the substantial evidence standard. (Wyckoff, supra, 90 Cal.App.4th
at p. 60.) Besides, these are just two sides of the same coin, as I will now explain.
After Baldwin, section 830.6 was amended to address a loss of design
immunity. As amended, section 830.6 states: “Notwithstanding notice that constructed
or improved public property may no longer be in conformity with a plan or design . . . ,
the immunity provided by this section shall continue for a reasonable period of time
sufficient to permit the public entity to obtain funds for and carry out remedial work
necessary to allow such public property to be in conformity with a plan or design
approved by the legislative body of the public entity or other body or employee, or with a
plan or design in conformity with a standard previously approved by such legislative
body or other body or employee.” (Italics added.) If a repair cannot be made, the statute
allows the public entity to provide “adequate warnings of the existence of the condition
not conforming to the approved plan or design or to the approved standard.” (§ 830.6,
italics added.) So section 830.6 now analyzes lack of conformity with the approved
design as a loss of design immunity issue, and again Cornette expressly held the
substantial evidence standard does not apply to loss of design immunity issues.
On the flip side, lack of conformity with the approved design can also be
analyzed in relation to the first element of the design immunity defense: the “causal
relationship between the plan or design and the accident.” (Cornette, supra, 26 Cal.4th at
p. 69.) If the improvement is not built in substantial conformity with the approved plan
or design, there is no causal link between the design and the injury. This is a triable issue
of material fact for the jury to decide under traditional standards, not a question for the
court to decide under the substantial evidence standard. (Id. at p. 75.)
11
In conclusion, design immunity is supposed to protect the decisions of
policymakers designing or approving the design of a work of improvement, not the
mistakes of contractors building one. And it is a pure creature of statute, to be applied
only as the Legislature commands, and not further. By applying the substantial evidence
standard to the first two elements of the design immunity defense, and to the elements of
the loss of design immunity claim, the majority opinion violates both of these principles.2
3. The Conflicting Expert Opinions Raise Triable Issues of Material Fact.
The majority contends even if the substantial evidence standard does not
apply in this case, Menges failed to raise a triable issue of material fact vis-a-vis
substantial conformity with the approved plans. Here the majority mischaracterizes and
improperly weighs the opinions of Menges’s experts—Ruzak and Avrit.
Ruzak, the majority remarks, conceded the identified nonconformity with
the plans would be permissible if there were no problem with the other signage. But the
majority ignores Ruzak’s underlying point—that the deviations from the plans would
only have been acceptable if the off-ramp had been designed differently (specifically,
with an overhead sign containing arrows directly over each of the two exiting lanes).
Avrit, the majority contends, said only that “Caltrans did not construct the
subject project in exact conformity with their own approved design plans.” And, since
exact conformity is not required, the majority discards Avrit’s opinion altogether. But
the majority takes this quote out of context, from Avrit’s rebuttal declaration, where he
was explaining why Caltrans’s expert’s reliance upon the “as-built” stamp was a mistake.
It also appears the majority cherry-picked this quote to make it look like Avrit’s
declaration supports the majority’s conclusion. It does not.
2
The majority claims Menges admitted Caltrans established the first two
elements of the design immunity defense. Not quite. Menges’s opening brief elected not
to address the first two elements, and instead addressed the substantial conformity issue
in relation to the third element—“unreasonable design.” This approach, together with the
arguments in her reply brief and her oral arguments, preserved the issue on appeal.
12
The principal opinion in Avrit’s main declaration in opposition to the
motion for summary judgment is decidedly different: “it is my opinion that there are
significant differences between the approved design and the condition of the roadway at
the subject off-ramp including [the “Must Exit” sign, the lack of chevrons in the gore
area, and the improper channelizer striping].” That is certainly sufficient to create a
triable issue of fact over substantial conformity with the plans.
Finally, the majority weighs the opinions of Caltrans’s expert, which the
majority writes were “extensive,” against the opinions of Menges’s experts, and finds the
opinions of Menges’s experts unconvincing. This is patently improper. On summary
judgment, absent the substantial evidence standard, we cannot weigh competing expert
opinions, evaluate their credibility, and pick a winner, no matter how “extensive” the
opinions may be. (Code Civ. Proc., § 437c; Garrett v. Howmedica Osteonics Corp.
(2013) 214 Cal.App.4th 173, 186-189 (Garrett) [trial court’s gatekeeping function in
evaluating expert testimony on summary judgment does not involve “choosing between
competing expert opinions”].) That role is reserved for the trier of fact—usually, a jury.
What’s more, in performing our de novo review, we are required to strictly
construe the evidence of the moving party and liberally construe the evidence of the
opposing party; and we must resolve all evidentiary doubts or conflicts and indulge all
reasonable inferences in favor of the opposing party. (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 768; see also Garrett, supra, 214 Cal.App.4th at p. 189.)
For all these reasons, the summary judgment must be reversed, and this
case must proceed to a trial on the merits as preferred by California law. As the justices
in the majority here noted in Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395,
“‘Though often said, it appears necessary to again reiterate that a summary judgment is a
drastic measure which deprives the losing party of trial on the merits.’ [Citations.] The
right to a jury trial, embodied in article I, section 16 of the California Constitution, is at
stake. (See Troutman, The Jury Trial (1977) 51 Fla. B.J. 331, 332 [cautioning against too
13
liberal summary judgment as an ‘abandonment of the hard-fought principles of our
forefathers who believed that no amount of economy and efficiency is adequate
consideration for a fair and impartial jury’ trial].) . . . But technical compliance with the
procedures of Code of Civil Procedure section 437c is required to ensure there is no
infringement of a litigant’s hallowed right to have a dispute settled by a jury of his or her
peers.”
THOMPSON, J.
14