De La Cruz v. Dept. of Transportation CA2/3

Filed 3/23/21 De La Cruz v. Dept. of Transportation CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

EVELYN DE LA CRUZ, B301317

Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC586789
v.

DEPARTMENT OF
TRANSPORTATION,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark A. Young, Judge. Affirmed.
Paoli & Purdy and Court B. Purdy for Plaintiff and
Appellant.
Jerald M. Montoya, Deputy Chief Counsel, and Matthew
Campbell for Defendant and Respondent.
_______________________________________
 INTRODUCTION

This appeal arises from a tragic accident in which a man
(the decedent) and his then seven-year-old daughter (plaintiff)
were struck by a car while crossing Pacific Coast Highway (PCH)
on foot. Plaintiff brought this wrongful death and personal injury
action against the driver of the car involved in the accident, the
City of Malibu, the City and County of Los Angeles, and the State
of California. Plaintiff alleges a dangerous condition on public
property caused the accident. The State of California through the
Department of Transportation (Caltrans) designed and maintains
the section of PCH where the accident occurred and is the only
respondent in this appeal.
Plaintiff and the decedent had been at El Pescador State
Beach during the afternoon and evening prior to the accident.
They left the beach and were crossing PCH—a four-lane highway
with a posted speed limit of 55 miles per hour—at approximately
9:00 p.m. to reach the decedent’s car, which was parked on the
highway shoulder across from the beach. Plaintiff’s complaint
asserts that the shoulder where the decedent parked was less
than eight feet wide and, given that relatively narrow width,
Caltrans should have prohibited parking on the shoulder. And if
parking had been prohibited, plaintiff alleges, the decedent would
not have parked on the shoulder, they would not have attempted
to cross PCH on foot in the dark to reach the decedent’s truck,
and the accident would not have occurred.
Caltrans moved for summary judgment on the basis of
design immunity under Government Code section 830.61 and sign

1 All undesignated statutory references are to the Government Code.

2
and light immunity under sections 830.4 and 830.8. The court
granted the motion and entered judgment in favor of Caltrans.
Finding no error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

1. The Scene
State Route 1, also known as PCH, runs along the coast
throughout the length of Los Angeles County. PCH was designed
and is maintained by Caltrans.
El Pescador State Beach (the beach) is located south2 of
PCH in Malibu, just east of Decker Canyon Road. A parking lot is
near the beach and a short access road connects the parking lot to
PCH.
In the area of the beach, PCH is a four lane highway (two
lanes northbound, two lanes southbound) with a two-way left
turn lane in the center of the highway. The posted speed limit is
55 miles per hour. Parking is not permitted on the coastal
shoulder for some distance on either side of the access road. On
the inland shoulder, a fog line separates the traffic lanes from the
paved shoulder. If a person parks on the inland shoulder and
wishes to access the beach, the person would need to cross the
highway on foot. No marked crosswalk or traffic control signal is
provided.

2 PCH generally runs along the coast in a north/south direction. At the
scene of the accident, however, PCH runs in an east/west direction due
to the orientation of the coastline. Consistent with the highway’s
directional designation, we will refer to the direction of traffic on PCH
at the accident site as northbound and southbound. To avoid confusion,
we will reference the shoulders as inland (adjacent to northbound
traffic lanes) and coastal (adjacent to southbound traffic lanes.)

3
2. The Accident
The accident occurred just before 9:00 p.m. on August 9,
2014.3 On that day, the decedent spent the afternoon and evening
with family members at the beach. After the sun set, the
decedent and his family packed up their belongings and left the
beach. The decedent, who had parked his truck on the inland
shoulder across from the access road, began crossing PCH while
carrying plaintiff. He successfully crossed the two southbound
traffic lanes and the center turn lane but then stepped into the
first northbound traffic lane and was immediately hit by a car
travelling at or near the posted speed limit. The decedent was
thrown approximately 96 feet from the point of impact and died
at the scene due to his injuries. Plaintiff landed in the center turn
lane near the point of impact and sustained unknown injuries.
The decedent’s blood alcohol concentration was later determined
to be 0.26 percent.
3. The Operative Complaint
Plaintiff filed this wrongful death and personal injury
action against the driver of the car, the City of Malibu, the City of
Los Angeles, the County of Los Angeles, and the State of
California. Plaintiff alleged that a dangerous condition on public
property existed at the accident site. (See Gov. Code, § 830 et
seq.) Specifically, she alleged that the inland shoulder “did not
meet the minimum shoulder width requirements and was in
violation of the CALTRANS Highway Design Manual” and other
design guidelines. Because the inland shoulder near the beach
failed to meet the mandatory width requirements, plaintiff

3 The sun set at 7:48 p.m. on August 9, 2014.

4
asserted, Caltrans “should have prohibited the public, including
Decedent and Plaintiff … from ever parking on the [inland
shoulder], which would have not only eliminated the ‘dangerous
conditions’ alleged herein but would have prevented this tragic
accident from ever taking place. At all times relevant to this
matter, these Defendants, have had actual and constructive
knowledge that the width of the [inland shoulder] across from …
El Pescador State Beach[ ] [was] of an insufficient width to
accommodate vehicles parked along that section of the roadway
as set forth in, and mandated by, Defendants[’] own highway
design standards and those recognized by the State of California
as being the absolute [minimum] requirements.”
Plaintiff also asserted that “additional conditions … added
to the aforesaid ‘dangerous condition,’ ” thereby creating a
substantial risk of injury to pedestrians crossing PCH to access
the beach. These additional “dangerous conditions included
inadequate roadway markings and warnings to both pedestrians
and motorists of the existence of pedestrians along and crossing
[PCH], the absence of reasonable warning signs or beacons, the
absence of any street lighting, visual distractions to motorists,
unpredictable traffic gaps[,] sub-optimal warning signals and
signs, the absence of a refuge island in the middle of the street
which would permit a pedestrian to focus on the immediate
traffic to his or her left until the pedestrian reached a point of
safety on the opposition side of the street, inadequate parking for
[the beach] which, combined with a busy four laned roadway,
excessive speeds, and other traffic conditions served to create an
immediate hazard, trap, and a deceptively dangerous condition to
pedestrians, such as [plaintiff and the decedent] who could
reasonably and foreseeably be anticipated to walk across this

5
thoroughfare while using due care to get back to their vehicle
which was legally parked on the [inland shoulder] after visiting
El Pescador State Beach.”
4. Summary Judgment Proceedings
Caltrans filed a motion for summary judgment on the
grounds of design immunity under section 830.6 and sign and
light immunity under sections 830.4 and 830.8. With respect to
design immunity,4 Caltrans relied on plaintiff’s complaint, which
asserted that the design of the inland shoulder—specifically its
less than eight foot width combined with the absence of a parking
prohibition—led the decedent to park on the inland shoulder and
thereby caused the accident.5 Caltrans offered evidence that the
“as-built” design plan for the section of PCH at issue was
approved as required. And, finally, Caltrans cited expert
testimony that the design of the highway was reasonable.
As to sign and light immunity, Caltrans noted that the
absence of signs or lights is not a dangerous condition per se and,
furthermore, signs and lights are only required where a
dangerous condition is hidden or concealed, creating a trap for

4As we explain, a governmental entity asserting design immunity
must demonstrate (1) a causal relationship between the design and the
accident, (2) design approval prior to construction, and (3) any
substantial evidence showing the reasonableness of the design.
5 Although plaintiff’s theory of liability relating to the highway design
is attenuated, Caltrans did not move for summary judgment on the
ground that the purported dangerous condition on the inland shoulder
did not proximately cause the accident which, as noted, occurred in the
center of the highway. Caltrans did not, however, concede the existence
of a dangerous condition at the accident site.

6
motorists or pedestrians. The accident site, however, had no
concealed dangerous conditions.
Plaintiff opposed the motion. Primarily, plaintiff argued
that Caltrans was not entitled to design immunity because “[t]he
immunity only applies to ‘a design-caused’ accident. [Citation.] In
this case, the as-built plans themselves did not create the
‘dangerous condition,’ it was the failure to conform to the
specifications and [Caltrans’s] own minimum standards which
created the defect and resulted in the Plaintiff and her father
crossing PCH to try to reach their car parked on the sub-standard
and defective right shoulder. The as-built plans specify that the
right shoulder need be [sic] 8 feet because that was the minimum
amount of space required to permit people to park in that area.
[Caltrans], by its own admissions and relevant as-built design
plans, left itself no room for error in the implementation of said
design since anything less than the minimum 8 foot wide
shoulder was undisputably [sic] in violation of [Caltrans’s] very
own [Highway Design Manual]” as well as other design
guidelines. Summarizing her argument, plaintiff stated “[t]he
Defendant mistakenly assumes that Plaintiffs have a criticism of
the as-built design themselves [sic]. The issues arise not from the
plans per se but from the fact that the subject roadway
substantially deviates from said plans which should have
resulted in parking being prohibited at the location of the
accident.”
5. The Court’s Ruling and the Appeal
As noted, Government Code section 830.6 provides
complete governmental immunity from liability for injury caused
by a dangerous condition on public property if the governmental
entity can establish (1) a causal relationship between the public

7
property’s design and the accident, (2) discretionary approval of
the design prior to construction, and (3) substantial evidence
supporting the reasonableness of the design. Here, the court
found, Caltrans’s design allowed for parking on the inland
shoulder of PCH and plaintiff cited that design feature as the
cause of the accident. And although plaintiff contended the
inland shoulder at the site of the accident failed to comply with
the design, she failed to establish that allowing parking on a
narrower shoulder was per se unreasonable. As to the second
element, the court found, based on Caltrans’s expert witness, that
the design plans relating to the accident site were approved as
required. Finally, as to the third element, the court relied in part
on Caltrans’s expert witness to conclude the design was
reasonable due to the expected (low volume) of pedestrian traffic
at the accident site.
Addressing sign and light immunity, the court noted that a
governmental entity need only provide signs and/or lighting to
mitigate a concealed dangerous condition. On that point, the
court found no triable issue of material fact as to whether any
dangerous trap or peculiar condition existed at the accident site.
Accordingly, the court granted Caltrans’s motion for summary
judgment.
The court entered a judgment in favor of Caltrans on
July 25, 2019. Plaintiff timely appeals.

DISCUSSION

1. Appellate Review of Summary Judgment
“The purpose of the law of summary judgment is to provide
courts with a mechanism to cut through the parties’ pleadings in
order to determine whether, despite their allegations, trial is in

8
fact necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) The moving party
“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.” (Id. at p. 850; Code Civ. Proc., § 437c, subd. (c).) Where, as
here, a defendant moves for summary judgment based on an
affirmative defense, the defendant must show that undisputed
facts support each element of the affirmative defense. (See
Tansavatdi v. City of Rancho Palos Verdes (2021) 60 Cal.App.5th
423, 427–428 (Tansavatdi).) The party seeking summary
judgment bears an initial burden of production to make a prima
facie showing that no triable issue of material fact exists.
(Aguilar, at p. 845.) If that party carries this burden of
production, the opposing party then has the burden of production
to make a prima facie showing that a triable issue of material
fact exists. (Ibid.)
On appeal from a summary judgment, we review the record
de novo and independently determine whether triable issues of
material fact exist. (Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 767; Guz v. Bechtel National Inc. (2000) 24 Cal.4th
317, 334.) We resolve any evidentiary doubts or ambiguities in
favor of the party opposing summary judgment. (Saelzler, at
p. 768.) We need not defer to the trial court and are not bound by
the reasons in its summary judgment ruling; we review the
ruling of the trial court, not its rationale. (Oakland Raiders v.
National Football League (2005) 131 Cal.App.4th 621, 630.)
The appellant has the burden of showing error, even if the
appellant did not bear the burden in the trial court, and “ ‘to
point out the triable issues the appellant claims are present by
citation to the record and any supporting authority.’ ” (Claudio v.

9
Regents of the University of California (2005) 134 Cal.App.4th
224, 230.) We “affirm the judgment of the trial court if it is
correct on any theory of law applicable to the case, including but
not limited to the theory adopted by the trial court.” (Western
Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.)
2. Public Entity Liability for Dangerous Condition on
Public Property
Under the Government Claims Act (the Act), “ ‘[a] public
entity is not liable for an injury,’ ‘[e]xcept as otherwise provided
by statute.’ ” (Hampton v. County of San Diego (2015) 62 Cal.4th
340, 347 (Hampton); see Guzman v. County of Monterey (2009) 46
Cal.4th 887, 897 [noting “ ‘there is no common law tort liability
for public entities in California’ ”].) The Act declares a general
rule of immunity (§ 815) and then sets out exceptions to that rule.
(Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757
(Cole).) Plaintiff invokes the exception for a dangerous condition
on public property.
The Act “provides for direct liability on the part of public
entities for injuries caused by maintaining dangerous conditions
on their property when the condition ‘created a reasonably
foreseeable risk of the kind of injury which was incurred’ and
either an employee’s negligence or wrongful act or omission
caused the dangerous condition or the entity was on ‘actual or
constructive notice’ of the condition in time to have taken
preventive measures. (§ 835; [citation].) A dangerous condition is
one that ‘creates a substantial ... risk of injury’ when the property
is ‘used with due care in a manner in which it is reasonably
foreseeable that it will be used.’ (§ 830, subd. (a).)” (Hampton,
supra, 62 Cal.4th at pp. 347–348, citing Cornette v. Department of
Transportation (2001) 26 Cal.4th 63, 66 (Cornette).) “Property is

10
not ‘dangerous’ within the meaning of the statutory scheme if the
property is safe when used with due care and the risk of harm is
created only when foreseeable users fail to exercise due care.”
(Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.)
As set forth in section 835, the cause of action for
dangerous condition of public property consists of the following
elements: “(1) a dangerous condition of public property; (2) a
foreseeable risk, arising from the dangerous condition, of the kind
of injury the plaintiff suffered; (3) actionable conduct in
connection with the condition, i.e., either negligence on the part
of a public employee in creating it, or failure by the entity to
correct it after notice of its existence and dangerousness; (4) a
causal relationship between the dangerous condition and the
plaintiff’s injuries; and (5) compensable damage sustained by the
plaintiff.” (Cole, supra, 205 Cal.App.4th at p. 758.)
Although Caltrans did not concede the existence of a
dangerous condition on public property in its motion for summary
judgment, it did not move for summary judgment based on the
absence of a dangerous condition. We therefore proceed directly
to the analysis of Caltrans’s design immunity defense without
considering whether plaintiff could prevail on her claim that a
dangerous condition of public property exists at the accident site.
3. The court properly granted Caltrans’s motion for
summary adjudication on the basis of design
immunity.
3.1. Legal Principles
“If a dangerous condition is demonstrated, the public entity
may still prevail against a claim by means of an affirmative
defense of immunity. Various types of public sector immunity
have been established by statute ... .” (Hampton, supra, 62

11
Cal.4th at p. 348 [citing §§ 830.8 and 831.2 as examples].)
Caltrans asserts the affirmative defense of design immunity
under section 830.6. The statute states in part: “Neither a public
entity nor a public employee is liable under this chapter for an
injury caused by the plan or design of a construction of, or an
improvement to, public property where such plan or design has
been approved in advance of the construction or improvement by
the legislative body of the public entity or by some other body or
employee exercising discretionary authority to give such approval
or where such plan or design is prepared in conformity with
standards previously so approved, if the trial or appellate court
determines that there is any substantial evidence upon the basis
of which (a) a reasonable public employee could have adopted the
plan or design or the standards therefor or (b) a reasonable
legislative body or other body or employee could have approved
the plan or design or the standards therefor.” “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,
supra, 26 Cal.4th at p. 69.)
A public entity raising this defense must establish three
elements: (1) a causal relationship between a plan or design and
the accident; (2) discretionary approval of the plan or design prior
to construction; and (3) substantial evidence supporting the
reasonableness of the plan or design. (Cornette, supra, 26 Cal.4th
at p. 69.) The first two elements—causation and discretionary
approval—involve factual questions to be resolved by a jury
unless, as is the case here, the relevant facts are undisputed. (See
Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550

12
(Alvis); Tansavatdi, supra, 60 Cal.App.5th at p. 428) The third
element—the existence of substantial evidence supporting the
reasonableness of the plan or design—is a legal matter for the
court to decide. (Cornette, at p. 66.)
3.2. First Element: Causal Relationship
Although plaintiff contends Caltrans did not establish any
of the three elements of design immunity, her main argument
focuses on the first element. Plaintiff insists that the design of
PCH at the accident site has no causal relationship to the
accident. Specifically, plaintiff asserts that the as-built plans are
acceptable, but Caltrans failed to construct the inland shoulder
according to the design plan. And because the shoulder as
constructed is allegedly less than eight feet wide, plaintiff argues
that Caltrans should have decided, separate and apart from the
design plan, to prohibit parking on the inland shoulder. Plaintiff
now purports to attack that “subsequent decision” by Caltrans to
permit parking on the inland shoulder, rather than the highway
design in the first instance. Plaintiff also appears to claim, for the
first time, that the width of the inland shoulder is irrelevant and
Caltrans should have prohibited parking on the inland shoulder
due to the inherent danger to beach-going pedestrians who might
park there and cross PCH on foot. We address these issues in
turn.
Design immunity applies only to injuries “caused by the
plan or design of a construction of, or an improvement to, public
property ... .” (§ 830.6.) In other words, this defense does not
immunize negligence unrelated to a design or plan. (See, e.g.,
Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940–941
(Grenier) [noting causation may be negated by evidence showing
poor maintenance and clogging of drainage system, not merely

13
system’s design].) On summary judgment, the defendant may
rely on the allegations of the complaint to establish this element,
as Caltrans did in this case. (Alvis, supra, 178 Cal.App.4th at
p. 550, citing Fuller v. Department of Transportation (2001) 89
Cal.App.4th 1109, 1114.)
Here, plaintiff alleged that the inland shoulder “did not
meet the minimum shoulder width requirements and was in
violation of the CALTRANS Highway Design Manual” and other
design guidelines. Because the inland shoulder near the beach
failed to meet the mandatory width requirements, plaintiff
further alleged, Caltrans “should have prohibited the public,
including the Decedent and Plaintiff … from ever parking on the
[inland shoulder], which would have not only eliminated the
‘dangerous conditions’ alleged herein but would have prevented
this tragic accident from ever taking place.”
In opposition to the motion for summary judgment, and
again on appeal, plaintiff argues that PCH, as built, does not
conform to the design plans: the design called for a minimum
eight foot shoulder and the inland shoulder in the area of the
accident was less than eight feet wide.6 Plaintiff’s unstated legal
argument is, presumably, that the affirmative defense of design
immunity is only available if the improvement as designed
“conformed to a design approved by the public entity vested with
discretionary authority.” (Cameron v. State of California (1972) 7
Cal.3d 318, 326 (Cameron).) She also argues that, at a minimum,
there is a material dispute of fact concerning the actual width of
the shoulder at the accident site.

6The as-built plans state that the width of the inland shoulder is to be
2.4 meters, which converts to 7.87 feet or 7 feet, 10.5 inches. Both
experts view 2.4 meters and 8 feet as equivalent.

14
 It is true that the parties’ experts did not agree on the
precise width of the inland shoulder where the decedent’s vehicle
was parked. Caltrans’s expert, Kim Nystrom, measured the
inland shoulder at multiple points near the accident site.
Nystrom measured the asphalt shoulder and a narrow drainage
area that could be used by a vehicle parked on the shoulder.
Including that drainage area, her shoulder width measurements
in the immediate area of the decedent’s vehicle ranged from 9
feet, 3 inches to 9 feet, 7 inches, while plaintiff’s expert’s
measurements ranged from 7 feet, 10 inches to 8 feet, 10 inches.
Nystrom also measured specific station line locations used by
plaintiff’s expert Allen Bourgeois and noted that their
measurements were different. At 0 feet, she measured 8 feet, 11.5
inches while Bourgeois measured 7 feet, 10 inches; at 50 feet, she
measured 8 feet, 8.5 inches while Bourgeois measured 7 feet, 8
inches; and at 100 feet, she measured the shoulder at 8 feet, 5
inches while Bourgeois measured 7 feet, 3 inches. Notably, the
drainage area Nystrom included in her measurements added
approximately one foot to the shoulder width measurements, as
compared with Bourgeois, who did not include the drainage area.
As Bourgeois noted, the inclusion of the drainage area in
Nystrom’s measurements likely accounts for the majority of the
difference.
Although plaintiff’s expert and Caltrans’s expert disagreed
on the precise width of the inland shoulder at the accident site,
even the lowest measurements meet the design specification on
the relevant section of PCH: Bourgeois determined that the
inland shoulder directly across from the beach access road was 7
feet, 10 inches wide and gradually increased to 8 feet, 10 inches
over the next 100 feet, moving in the northbound direction.

15
 In any event, this factual dispute is not material because
perfection is not required in the construction of roadways. On this
point, both the court and Caltrans cite Wyckoff v. State of
California (2001) 90 Cal.App.4th 45 (Wyckoff). There, a motorist
sued the state for personal injury and wrongful death in
connection with a highway accident. A northbound vehicle
crossed the roadway’s center median and struck the motorist’s
southbound vehicle, injuring the motorist and killing his wife and
two children. The trial court granted summary judgment to the
State on the ground of design immunity.
On appeal, the motorist claimed that “ ‘design immunity is
not available to the State, since route 85, as built, never
conformed to the design plans: the design called for a minimum
46-foot median, and route 85 was built with a 45-foot median.’ ”
(Wyckoff, supra, 90 Cal.App.4th at p. 52.) The motorist’s evidence
established that the median measured 45.3 feet in the area of the
accident. The Court of Appeal concluded, as did the trial court,
that the improvement as built did not materially depart from the
design approved by the public entity. Specifically, the State’s
expert explained that although the measurements taken by the
experts in the case varied somewhat, and it appeared that the
median was approximately six inches smaller than designed, the
deviation was within construction tolerances. The court
concluded that the median, which was approximately 45 feet,
5 inches wide at the accident site did not depart materially from
the approved design calling for 46-foot-wide median, and
therefore the affirmative defense of design immunity was
available. (Id. at pp. 52–55.)
As noted ante, Caltrans’s expert and plaintiff’s expert
measured the shoulder width slightly differently but both sets of

16
measurements were within a few inches of the specifications in
the as-built plans. Further, Caltrans’s expert stated that the
placement of the fog line stripe that separates the traffic lanes
from the inland shoulder was within acceptable tolerances. In
other words, the width of the shoulder substantially complies
with the as-built plans. Given that the premise of plaintiff’s
theory of liability is that the inland shoulder was too narrow to
permit parking, these facts are fatal to her case.7
Perhaps it is not a coincidence, then, that plaintiff appears
to assert a new theory on appeal. Plaintiff now suggests that “this
is not a case where the accident is related to a defect in the As-
Built Plans themselves or even in the fact that the right shoulder
did not adhere to the 8 foot width required on the plans. This case
revolves around the secondary decision of Caltrans, to permit
parking against its own safety standards separate and apart from
the design plans.” (Italics added.) Plaintiff asserts, without citing
any supporting evidence, that the as-built plans neither permit
nor prohibit parking on the inland shoulder and that Caltrans
made a decision to permit parking in that location at some
unspecified time and for unspecified reasons.
Because plaintiff did not raise this argument in opposition
to the motion for summary judgment and submitted no evidence
to support her assertion that Caltrans made a subsequent
decision to permit parking in the area of the accident site, we

7 Plaintiff repeatedly cites the opinion of Joseph Kibe, the Senior
Traffic Engineer for Caltrans, who opined that Caltrans’s own safety
rules state that parking should be prohibited on a shoulder less than
eight feet wide. Because no material dispute of fact exists regarding
the width of the shoulder, the court properly rejected this testimony as
irrelevant.

17
conclude plaintiff has forfeited this issue. (See, e.g., Venice
Coalition to Preserve Unique Community Character v. City of Los
Angeles (2019) 31 Cal.App.5th 42, 54 [party forfeited issue by
failing to “include the underlying facts to support [the] allegation
in their separate statement of facts opposing summary
judgment”]; LaChapelle v. Toyota Motor Credit Corp. (2002) 102
Cal.App.4th 977, 983 [affirming grant of summary judgment and
noting “[a]ppellant is not entitled to raise for the first time on
appeal a theory that involves a controverted factual situation not
put in issue below”].) We reach the same conclusion regarding
plaintiff’s suggestion that Caltrans should have prohibited
parking on the inland shoulder due to the risk to pedestrians who
might attempt to cross a highway with a posted speed limit of 55
miles per hour, irrespective of the width of the shoulder. That
claim is not adequately pleaded in the operative complaint and
that theory was also not raised in opposition to the motion for
summary judgment.
3.3. Second Element: Discretionary Approval
“The second element, discretionary approval prior to
construction, ‘simply means approval in advance of construction
by the legislative body or officer exercising discretionary
authority.’ [Citation.] A detailed plan, drawn up by a competent
engineering firm, and approved by a city engineer in the exercise
of his or her discretionary authority, is persuasive evidence of the
element of prior approval. [Citation.]” (Grenier, supra, 57
Cal.App.4th at p. 940.) “[T]he discretionary approval element of
design immunity asks whether a person vested with discretion to
approve the plan did approve the plan or design that was built,
and that the question whether it was wise to approve the plan is

18
judged under the reasonableness element of the statute.”
(Hampton, supra, 62 Cal.4th at p. 357.)
In support of its motion for summary judgment, Caltrans
submitted six pages of as-built plans relating to PCH at the
accident site. One page shows the original path of construction of
PCH in 1935 (Contract No. 67VC24). The other five pages were
taken from the as-built plans for the most recent large-scale
construction project on PCH (Contract No. 07-115294) which was
completed in 2000. Those pages show the location of the project,
the typical cross section of the roadway, the general layout of the
roadway, and the installed roadway signs and pavement
delineation. Plaintiff submitted the same design plan pages from
Contract No. 07-115294 in her appendix of exhibits in support of
her opposition and her expert relied on them in formulating his
opinions. Nevertheless, plaintiff claims that the evidence fails to
establish that the design plans were approved by a state
employee with discretionary authority.
Caltrans’s expert, Kim Nystrom, is a civil engineer who
worked for Caltrans for 17 years and has extensive experience in,
among other things, the roadway and design process. Nystrom
attested that the title sheet shows that the plans submitted by
Caltrans from Contract No. 07-115294 are “As-Built,” meaning
the plans “reflected what was actually constructed on the project
and show that the constructed facility fully complies with the
prior approved design plans. Both the Project Engineer’s
signature and the Design Engineer’s signature [are] displayed on
the bottom right-hand corner of the plan sheet to show that the
plan was approved by the engineer(s) responsible for designing
and overseeing the project.”

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 The engineers’ signatures on the as-built plans indicate
that the plans were properly approved. “A signature is presumed
to be genuine and authorized if it purports to be the signature,
affixed in his official capacity, of [¶] … [a] public employee of any
public entity in the United States.” (Evid. Code, § 1453,
subd. (b).) “Given this presumption, the signatures of the various
Caltrans engineers, affixed in their official capacity as employees
of the State, furnishes ‘evidence sufficient to sustain a finding’
that the writings were what the State claimed them to be. (Evid.
Code, § 1400, subd. (a).) Thus, the plans themselves provide
evidence that the [highway] design was given the requisite
discretionary approval prior to construction.” (Alvarez v. State of
California (1999) 79 Cal.App.4th 720, 728–729, abrogated on
another point by Cornette, supra, 26 Cal.4th at p. 74, fn. 3.)
Contrary to the authority just discussed, plaintiff appears
to contend that the as-built plans and Nystrom’s declaration are
insufficient to establish that the roadway plans were approved by
an authorized person with discretionary authority. She suggests
that “sworn declarations and testimony from city and state
employees attesting to the procedures in place to provide the
discretionary authority to approve specific plans” are required.
None of the cases cited stand for that proposition, however, and
we decline plaintiff’s invitation to create such a rule.
3.4. Third Element: Substantial Evidence of
Reasonable Design
“The third element of design immunity, substantial
evidence of reasonableness of design, requires only substantial
evidence. ‘[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

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not require that property be perfectly designed, only that it be
given a design which is reasonable under the circumstances.’
[Citation.] Generally, a civil engineer’s opinion regarding
reasonableness is substantial evidence sufficient to satisfy this
element. [Citation.] Approval of the plan by competent
professionals can, in and of itself, constitute substantial evidence
of reasonableness. [Citation.]” (Grenier, supra, 57 Cal.App.4th at
p. 941.) Courts also consider evidence that the design complied
with prevailing professional standards of design and safety. (See,
e.g., Weinstein v. Department of Transportation (2006) 139
Cal.App.4th 52, 58–59; Uyeno v. State of California (1991) 234
Cal.App.3d 1371, 1380–1382.) The accident history of the
improvement has been considered in evaluating the
reasonableness of the design. (Callahan v. City and County of
San Francisco (1971) 15 Cal.App.3d 374, 379–380.) “Section 830.6
makes the resolution of this issue a matter of law for the trial or
appellate court.” (Alvis, supra, 178 Cal.App.4th at p. 553, citing
Cornette, supra, 26 Cal.4th at p. 72.)
The regular rules governing motions for summary
judgment, which require that the motion be denied if the party
opposing the motion raises any triable issue of material fact, do
not apply to the reasonableness element of the design immunity
defense. (Wyckoff, supra, 90 Cal.App.4th at pp. 50–51.) “ ‘[T]he
defendant is not required to prove to the court that the design or
plan was in fact a 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 ... .’ ” (Id. at p. 51.) “We are not
concerned with whether the evidence of reasonableness is
undisputed; the statute provides immunity when there is

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substantial evidence of reasonableness, even if contradicted.”
(Grenier, supra, 57 Cal.App.4th at p. 940.) “That a plaintiff’s
expert may disagree does not create a triable issue of fact.” (Id. at
p. 941.)
Nystrom’s declaration provides substantial evidence that
the design of PCH at the site of the accident is reasonable.
Nystrom is a specialist with extensive work experience at
Caltrans regarding safety standards and building practices on
freeways and conventional highways. As part of her evaluation of
the accident site, Nystrom reviewed the as-built plans, pedestrian
accident reports during the 10 years preceding the accident at
issue, several highway design standards and manuals, and
reports and photographs relating to the accident. She also went
to the accident site twice and examined the highway.
Nystrom observed that the area surrounding the accident
site is rural with few homes or businesses in the area. PCH is
straight for approximately one mile in both directions from the
accident site and no obstructions impair the visibility of either
motorists or pedestrians. In addition, only one other pedestrian
accident was reported between 2005 and 2014—and that
pedestrian was intoxicated, like the decedent—which “shows that
roadway segment did not present a substantial risk of injury to
motorists or pedestrians using due care.” She also noted that
highway design resources, including Caltrans’s Highway Design
Manual, “allow[ ] for flexibility in design, based upon conditions,
and encourage the use of sound engineering discretion and
judgment.” In addition to engineering factors, a design must also
account for physical constraints, right-of-way constraints, costs,
environmental constraints, and other relevant factors. In her

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view, “there appears to be no deviations from applicable design
guidance” at the accident site.
In addition, Nystrom concluded that the design was
reasonable in light of the terrain and other environmental factors
including concerns about light pollution. Weighing those factors,
as well as the long sight distances at the accident site and the
absence of obstructions, Nystrom concluded that PCH “does not
pose a danger to motorists or pedestrians when used with due
care and caution.”
Plaintiff relies on her expert’s testimony stating that on-
street parking should be prohibited in areas where the speed
limit exceeds 45 miles per hour. In doing so, however, she fails to
acknowledge that the typical summary judgment standard does
not apply with respect to this element. As we have said, the
question is not whether the evidence is undisputed but rather
whether there is any substantial evidence of reasonableness—
disputed or undisputed. And as we have also said, Nystrom’s
opinion provides such substantial evidence.
4. The court properly granted Caltrans’s motion for
summary adjudication on the basis of sign and lighting
immunity.
Plaintiff additionally contends the court erred in concluding
that Caltrans is entitled to sign and lighting immunity under
sections 830.4 and 830.8. We disagree.
As noted ante, the area of PCH at issue does not include
any pedestrian-related safety measures such as a crosswalk, sign,
lighting or warning indicator. Under section 830.4, however, “[a]
condition is not a dangerous condition within the meaning of this
chapter merely because of the failure to provide regulatory traffic
control signals, stop signs, yield right-of-way signs, or speed

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restriction signs, as described by the Vehicle Code, or distinctive
roadway markings as described in Section 21460 of the Vehicle
Code.” Section 830.8 provides additional guidance: “Neither a
public entity nor a public employee is liable under this chapter
for an injury caused by the failure to provide traffic or warning
signals, signs, markings or devices described in the Vehicle Code.
Nothing in this section exonerates a public entity or public
employee from liability for injury proximately caused by such
failure if a signal, sign, marking or device (other than one
described in Section 830.4) was necessary to warn of a dangerous
condition which endangered the safe movement of traffic and
which would not be reasonably apparent to, and would not have
been anticipated by, a person exercising due care.” In other
words, these safety measures are only required if a hidden
dangerous condition exists. (Cameron, supra, 7 Cal.3d at p. 327
[noting that a public entity may be liable for failure to provide
warning signs if a sign is necessary to warn of a dangerous
condition which would not be reasonably apparent to, and would
not have been anticipated by, a person using the highway with
due care].)
Plaintiff contends that Caltrans was obligated “to lessen an
already existing ‘dangerous condition’ by installing warning signs
and street lights to illuminate the subject roadway which created
a ‘trap’ for both pedestrians and motorists.” We reject this
argument because there is no evidence that any dangerous
condition alleged by plaintiff was concealed or hidden. As
discussed ante, Caltrans’s expert visited the accident site and
observed clear sight lines for a mile in each direction of the
accident site and no obstructions along PCH that would impair
the visibility of either motorists or pedestrians. During the day,

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when the beach is open and cars are parked on the inland
shoulder, motorists would easily be able to observe beach-going
pedestrians attempting to cross PCH. As for the pedestrians, the
risk of crossing a four-lane highway with a speed limit of 55 miles
per hour is inherently obvious and a pedestrian using due care
would wait for a gap in traffic sufficient to allow safe crossing. In
sum, the risks of crossing PCH on foot are readily apparent and
there is no evidence suggesting a pedestrian “trap” exists at the
accident site.

DISPOSITION

The judgment is affirmed. Caltrans shall recover its costs
on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

ADAMS, J.*

* Judgeof the Los Angeles County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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