Filed 3/29/22 Cooper v. County of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TRAMAINE COOPER, D077872
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00026166-CU-PA-CTL)
COUNTY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Ronald L. Styn, Judge. Affirmed.
The Feldman Law Group and Gregory S. Cilli, for Plaintiff and
Appellant.
Lonnie J. Eldridge, County Counsel, Christopher Welsh, Jeffrey P.
Michalowski, and Juan Fernando Kish, Deputy Counsel for Defendant and
Respondent.
Following a collision along Dehesa Road, plaintiff Tramaine Cooper
sued the County of San Diego (the County), alleging it had created a
dangerous condition via placement of a “Welcome to Dehesa” sign and by
allowing left-hand turns across the road. Cooper also alleged the County
negligently failed to warn drivers of a concealed dangerous condition caused
by a reduction in the sight distance resulting from the sign’s placement. In a
motion for summary judgment or summary adjudication, the County claimed
there was no dangerous condition, it lacked notice of any dangerous
condition, and it had immunity from liability pursuant to Government Code 1
section 830.6, design immunity. The court agreed the County had design
immunity and granted the motion for summary judgment.
Cooper appeals, contending the court erred by finding design immunity
barred liability. Cooper contends the welcome sign does not justify design
immunity because its location was not approved before its initial placement
around 1999. He also contends an exception to immunity from liability for
failing to post signs (§ 830.8) applies because the sign created a concealed,
dangerous condition and failure to warn of that “hidden trap” takes
precedence over design immunity.
We conclude the court properly applied design immunity based on the
2012 project improvement plan that considered the placement of the sign.
We further conclude that under the facts of this case, design immunity
precludes the failure-to-warn claim, and even if it did not, because there was
no dispute that the County lacked notice of the allegedly concealed dangerous
condition, the decision to grant summary judgment was proper.
I
BACKGROUND AND PROCEDURAL FACTS
Midday on May 26, 2017, Wayne Koren was driving a flatbed truck
heading westbound on Dehesa Ranch Road. At the same time, Cooper was
riding his motorcycle eastbound along the same road. Koren made a left turn
onto a private driveway in front of Cooper, and the two collided. Cooper
1 Further statutory references are to the Government Code.
2
suffered injuries as a result. Koren told an officer at the scene that Cooper
came around the curve when the front end of the truck was about three feet
from the white line that marked the edge of Dehesa Road, off of which he was
turning. Koren clarified at his deposition that he saw the motorcycle at the
bottom of the curve. He also testified at the deposition that he saw Cooper
before he began his left turn but believed he had sufficient time to make the
turn safely.
Following the accident, Cooper filed suit against the County, 2 alleging
a cause of action for dangerous condition of public property in violation of
section 810. Cooper contended that the County’s placement of a “Welcome to
Dehesa” sign on the westbound stretch of the road where Koren was traveling
blocked drivers’ views of oncoming traffic and should not have been placed
where it was. He also believed left-hand turns at the location created a
dangerous condition, and the eastbound lane he was driving in lacked
adequate warning signs to avoid collisions.
The County moved for summary judgment and summary adjudication,
contending the road was not a dangerous condition, the County did not have
advanced notice of the alleged dangerous condition as required by
section 835, subdivision (b), and the action was barred by design immunity.
It explained that although the “Welcome to Dehesa” sign was initially
installed before 1999, in 2012 the County’s Department of Public Works
assigned a civil engineer and licensed traffic engineer to evaluate the safety
of Dehesa Road and determine what, if any, safety enhancements the County
should make.
2 Cooper also sued Koren and Koren’s employer, alleging negligence and
negligence per se. Those claims are not at issue in this appeal.
3
Giselle Finley, the assigned engineer, traveled the road and considered
sight distance limitations, obstructions, and whether the County should add
signs. She also reviewed the road’s accident history. There had been no
accidents on the road during the five years preceding the accident. Finley
considered and rejected “additional striping or modified striping, adding
curve advisory speed signs, adding or changing speed limit signs; adding
signs displaying curve warning symbols; the potential need for repositioning
of roadside signs, including the ‘Welcome to Dehesa’ sign; and the potential
need to enhance sight distance.” She determined that the only improvement
necessary to address safety issues was the addition of a centerline rumble
strip.
Finley prepared a formal set of plans to add a centerline rumble strip,
which was incorporated into a larger paving project that was reviewed and
approved by the Department of Public Works and ultimately ordered by the
San Diego Board of Supervisors. The centerline rumble strip was installed
before the collision, in compliance with the plans.
The County also provided a declaration from Karen Shaffer, a civil
engineer and registered traffic engineer employed by the Department of
Public Works. She estimated that each day 1,550 vehicles drive the stretch of
Dehesa Road near the collision, and there had been no reported similar
collisions in that area between January 1, 2012 and May 26, 2017. She also
stated that the County records showed no reports or complaints about the
area near the collision. She specified the County received no complaints
about the welcome sign, the road striping, the need for additional signs
regarding speed or the curve, the need to prohibit turns, sight distance
between opposing drivers along the roadway, or any unusual dangers
involving left-hand turns.
4
Cooper opposed the summary judgment motion, arguing the County’s
placement of the “Welcome to Dehesa” sign created a dangerous condition by
blocking the truck driver’s view, that the condition was created by the
County, and that design immunity was inapplicable because there was no
evidence the sign had been approved before its initial installation. Cooper
also argued design immunity did not bar the failure-to-warn claim. Cooper
supplied an expert report opining that the placement of the “Welcome to
Dehesa” sign reduced Cooper’s stopping sight distance and created a
dangerous condition, and that the County failed to provide a reduced speed
warning eastbound to account for the sight distance.
Cooper also filed a first set of evidentiary objections, which the court
rejected. The court did not rule on other evidentiary objections, determining
they were not material to its ruling. The court tentatively denied the
county’s motion, but following a hearing, the trial court granted the motion
on the ground that design immunity barred Cooper’s claims. The court
entered judgment in favor of the County, and Cooper timely appealed.
II
DISCUSSION
A. Standard of Review
“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 fact necessary to resolve their
dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843
(Aguilar).) The moving party bears the burden of proving there is no triable
issue of material fact and so it is entitled to judgment as a matter of law. (Id.
at p. 850.) “There is a triable issue of material fact if, and only if, the
5
evidence would allow a reasonable trier of fact to find the underlying fact in
favor of the party opposing the motion in accordance with the applicable
standard of proof.” (Ibid.)
A defendant must show either that at least one element of the cause of
action cannot be established or provide a complete defense to the cause of
action. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284,
289-290.) If the defendant carries this burden of production, there is a shift,
and the opposing party must “make a prima facie showing of the existence of
a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
“We review the record and the determination of the trial court de novo.”
(Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) We
“view the evidence in a light favorable to plaintiff as the losing party
[citation], liberally construing [the plaintiff’s] evidentiary submission while
strictly scrutinizing defendants’ own showing, and resolving any evidentiary
doubts or ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 768.)
B. Principles of Law Governing Design Immunity
Government Code section 835 states that “[e]xcept as provided by
statute,” a public entity is liable for injury caused by a dangerous condition of
its property if the property was in a dangerous condition at the time of the
injury; the dangerous condition proximately caused the condition; the
dangerous condition created a foreseeable risk of the kind of injury the
plaintiff suffered; and either an employee created the condition within the
scope of employment or the public entity had actual or constructive notice of
the condition and a sufficient period of time before the plaintiff’s injury to
protect against the condition. (§ 835, subds. (a) & (b).)
6
Section 830, subdivision (a), defines a dangerous condition as “a
condition of property that creates a substantial (as distinguished from a
minor, trivial or insignificant) risk of injury when such property or adjacent
property is used with due care in a manner in which it is reasonably
foreseeable that it will be used.” Typically, a jury determines whether there
is a dangerous condition. (See Stathoulis v. City of Montebello (2008) 164
Cal.App.4th 559, 569-570.)
The Government Code also sets forth several exceptions to public entity
liability. One exception is design immunity, found in section 830.6. A public
entity is not liable for an injury that is caused by the plan or design of
construction or an improvement when that plan is approved in advance by an
entity with authority to approve it and there is substantial evidence to
demonstrate a reasonable public employee could have adopted the plan or
approved the plan. (§ 830.6.) To demonstrate design immunity, the public
entity must demonstrate “(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.” (Cornette v. Department of Transportation (2001) 26
Cal.4th 63, 69 (Cornette).)
Even after design immunity attaches to a project, a public entity can
lose its statutory immunity from liability under section 830.6 if its “actual
operation under changed physical conditions produces a dangerous condition
of public property and causes injury. . . .” (Baldwin v. State of California
(1972) 6 Cal.3d 424, 438 (Baldwin).)
C. Design Approval
There is no dispute before us about the first and third elements of
design immunity; the parties appear to agree that there is a causal
7
relationship between the plan or design and the accident, and Cooper does
not directly attack the County’s claim that there is substantial evidence
supporting the reasonableness of the design.3 Cooper focuses on the second
element, contending design immunity does not apply because the County
failed to get discretionary approval of the placement of the “Welcome to
Dehesa” sign before it was initially installed around 1999. Cooper maintains
that Finley’s consideration of the placement of that sign in 2012 is an
improper, after-the-fact approval not permitted by the code.
Although the County did not add the sign after Finley conducted her
safety review, the placement and propriety of the sign were considered as
part of an improvement to the space; thus, it falls within the immunity
offered by section 830.6. Finley’s declaration explains the County tasked her
with evaluating Dehesa Road to determine whether safety enhancement
should be made. As part of her process, she considered a series of design
possibilities: additional striping or modified striping, adding curve advisory
speed signs; adding speed limit signs; adding signs displaying curve warning
symbols; potential sight distance limitations and obstructions; the accident
history along the road; and the positioning of existing roadside signs. In her
judgment, a centerline rumble strip would enhance the safety of the road,
and she considered the most appropriate location to be along Dehesa Road.
She expressly considered and rejected repositioning the “Welcome to Dehesa”
sign. Then, she completed written plans on behalf of the Department of
3 Cooper’s opening brief argues the County “failed to provide evidence
needed to support the second element that a design or plan was approved
before the placement of the ‘Welcome to Dehesa’ sign.”
8
Public Works and stamped them with her registered professional engineer
stamp. These plans were approved before the County undertook the rumble
strip project, a project which was completed before May 2016.
The statute permits design immunity for “an injury caused by the plan
or design of a construction of, or an improvement to, public property” when
that plan or design is approved in advance. (§ 830.6, emphasis added.)
Cooper argues in his reply brief that the rumble strip project cannot be
considered an improvement to public property because section 830.6 requires
an “actual, physical change or addition to public real property” and there was
no physical change to the welcome sign. Even accepting the definitional
limitations of “improvement” Cooper claims in his reply brief, we disagree
with the narrow brush with which he paints the scope of the improvement at
issue here. While it is true that the welcome sign was not constructed or
physically changed in some way, the improvement project actually caused a
physical change to Dehesa Road because of the addition of the rumble strip.
Further, the immunity applies to the consequences of the “plan or
design,” and that can include intentional omissions. For example, in
Sutton v. Golden Gate Bridge, Highway & Transportation Dist. (1998)
68 Cal.App.4th 1149, 1159-1161 (Sutton), the court explained that design
decisions can include decisions to omit features. There, the record
demonstrated that during a project to replace the roadway of the Golden Gate
Bridge, which was deteriorating, in 1979 the city hired a traffic and
transportation engineer who conducted a safety study to determine whether
to install a median barrier. The engineer recommended continuing the then-
current operations, and the board of directors subsequently authorized a
project that did not include construction of a median barrier. Years later, the
9
district considered whether it should add moveable median barriers and
again concluded the omission of the barriers was reasonable. The court of
appeal explained that because there had been a design decision to exclude
any median barrier, design immunity protected the public entity from
liability.
Here, the County approved a plan for an improvement to public
property by approving the rumble strip project. The placement of the
“Welcome to Dehesa” sign was considered as part of that improvement
project; thus, the County’s approval of those plans includes the placement of
the sign. Like the design decision not to add a median barrier in Sutton,
here, the design decision was to leave the welcome sign in place.
Cooper asks us to treat the approval of these plans for the rumble strip
separately from the original placement of the “Welcome to the Dehesa” sign. 4
However, Finley’s declaration makes clear that the existence and placement
of that sign were part of the overall design and plan for the portion of Dehesa
Road that was being improved in 2012, and Cooper does not introduce any
evidence to refute those claims or to challenge her discretion to make such a
determination as the engineer assigned to evaluate the safety of that stretch
4 The County does not address whether there was any approval before
the initial installation of the sign.
10
of Dehesa Road.5 Because the sign’s placement was considered before the
rumble strip improvement project was undertaken, it meets the requirements
of section 830.6, and design immunity applies.
D. Failure to Warn
Cooper next contends the placement of the “Welcome to Dehesa” sign
obstructs westbound drivers’ views of oncoming traffic and creates a “hidden
trap” for drivers heading east along that stretch of road, creating liability for
the County. He argues the County should have posted a sign along the
eastbound portion of the road warning of the curve and further contends that
permitting left turns across Dehesa Road contributed to a concealed
dangerous condition. He maintains the court erred in granting the motion for
summary judgment because these causes of injury were separate, intervening
causes for which the County is liable notwithstanding design immunity. 6
1. Application of Section 830.8
Cooper relies on section 830.8, which provides immunity to public
entities for injuries caused by failing to provide signs warning of a dangerous
condition. The exception to the immunity offered by section 830.8 is the
“concealed trap” or “hidden trap” exception. (Chowdhury v. City of Los
5 Cooper comments in his reply brief that there is no evidence that the
Department of Public Works or the Board of Supervisors considered removing
the welcome sign. However, section 830.6 permits advance approval by an
“employee exercising discretionary authority,” and there is no real argument
that Finley was not acting within the scope of her discretionary authority
when she designed the improvement to exclude changes to the welcome sign’s
placement. (See, e.g., Laabs v. City of Victorville (2008) 163 Cal.App.4th
1242, 1263 [evidence that engineer employed by public entity “reviewed and
approved” construction plans established discretionary approval element as
matter of law].)
6 Cooper does not argue the County lacks substantial evidence to support
the reasonableness of its design.
11
Angeles (1995) 38 Cal.App.4th 1187, 1196-1197 [“concealed trap”]; Compton v.
City of Santee (1993) 12 Cal.App.4th 591, 600 (Compton) [“hidden
trap”];Washington v. City and County of San Francisco (1990) 219 Cal.App.3d
1531, 1536-1537 [“concealed trap”].) This exception allows a public entity to
be liable from injury proximately caused by failure to provide a warning sign
if the sign was necessary to warn of a dangerous condition, which would not
be reasonably apparent to, and would not be anticipated by, a person
exercising due care. (Cameron v. State of California (1972) 7 Cal.3d 318, 327
(Cameron); Chowdhury, at pp. 1196-1197.) Cooper maintains that this
section of the statute should supersede any design immunity available via
section 830.6. Our review of case law and the facts here leads us to a
different conclusion.
In Flournoy v. State of California (1969) 275 Cal.App.2d 806 (Flournoy),
the appellate court considered and rejected a design immunity claim but
explained there can be separate liability for independent, passive negligence.
There, plaintiffs alleged the state was negligent for failing to post warning
signs or recommending a reduction in speed regarding the icy conditions of a
roadway leading to a bridge. (Id. at p. 808.) The state claimed it was
protected by design immunity because the freezing of the surface of the street
leading to the bridge was inherent. (Id. at p. 810.)
The Court of Appeal noted that concurring, proximate causes can be set
in motion by a single defendant and concluded that “[r]egardless of the
availability of the active negligence theory, plaintiffs were entitled to go
before a jury on the passive negligence theory, i.e., an accident caused by the
state’s failure to warn the public against icy danger known to it but not
apparent to a reasonably careful highway user [citations].” (Flournoy, supra,
275 Cal.App.2d at p. 811.) It commented that the design immunity offered by
12
section 830.6 “does not immunize from liability caused by negligence
independent of design, even though the independent negligence is only a
concurring proximate cause of the accident.[ ]” (Flournoy, at p. 811,
fn. omitted.) The court concluded the state failed to demonstrate the design
caused the accident because ice on the road was not a specific design feature.
(Id. at p. 812.) And because the plan or design was not the original cause of
the accident, design immunity was not available as a defense. (Id. at p. 813.)
Moreover, because the requested warning signs regarding the icy road
leading to the bridge was not one of design, there was “no problem of
categorizing a warning sign as a diminution of a hazard created by the
original design.” (Flournoy, supra, 275 Cal.App.2d at p. 814.) In other words,
the placement of the bridge may have created a dangerous condition, but the
icy road was a separate, dangerous condition for which a warning may have
been necessary. Thus, the court recognized that “[t]he conditions of the
project in actual use after completion may generate intervening causative
forces,” and those intervening forces “do[ ] not relieve [the entity] from
liability if those forces were foreseeable.” (Id. at p. 813.)
Three years after Flournoy, the Supreme Court addressed design
immunity in Cameron, supra, 7 Cal.3d 318. There, the victims were injured
when their vehicle left the roadway after the driver lost control along a
portion of the road with a steep downgrade and a sharp S curve. (Id. at
p. 321.) The plaintiffs argued the curve with an uneven elevation was a
dangerous condition that would trap the driver, who would think the road
continued to the left when it continued to the right. (Id. at p. 323.) There
were no speed signs or warning signs regarding the curve. (Ibid.) The state
argued it was immune from liability under section 830.6 because the roadway
was part of an approved plan. (Cameron, at p. 322.) The plaintiffs contended
13
that the degree of elevation was not part of the plan, so design immunity did
not apply. (Ibid.) They also argued there was concurrent negligence from
failing to warn about the dangerous condition of the superelevation, giving
rise to an independent basis for recovery under section 830.8. (Cameron, at
p. 322.)
The Supreme Court concluded that on the record before it, because the
design plans did not specify the superelevation of the roadway, the state was
not eligible for design immunity under section 830.6. (Cameron, supra, 7
Cal.3d at pp. 325-326.) “For the guidance of the trial court upon remand,” the
Supreme Court also separately considered whether there was a viable action
for failure to provide warning signs. (Id. at pp. 326-327.) It recognized that
section 830.8 provides an exception to immunity for failure to provide such
signs when a sign is necessary to warn of a dangerous condition that would
not be reasonably apparent to a person using due care. (Cameron, at p. 327.)
The court explained that “ ‘the design immunity of section 830.6 is limited to
a design-caused accident. [Citation.] It does not immunize from liability
caused by negligence independent of design, even though the independent
negligence is only a concurring, proximate cause of the accident.’ ” (Id. at
p. 328.) Because the passive negligence of failing to warn of a dangerous
condition was independent of the design, the plaintiffs could properly bring
that theory to the jury: “[I]f there had been proper warning of a dangerous
curve and posting of the safe speed, the dangerous condition of the highway
would have been effectually neutralized. The state’s failure to so warn was
an independent, separate concurring cause of the accident.” (Id. at pp. 328-
329.) However, the holding in Cameron did not address whether design
immunity would protect a public entity when the decision not to include
warning signs is part of the design or plan itself. Nor do we read it as
14
holding that the plaintiff had an independent basis of liability under the
hidden trap exception on remand in the event design immunity applied to the
superelevation.
Several subsequent cases have considered more directly the question of
whether section 830.8 precludes application of the design immunity provided
in section 830.6, by considering whether section 830.8 allows for liability on
the failure to warn of a hidden trap when the trap is part of a dangerous
condition subject to design immunity.
In Compton, a panel of this court affirmed a trial court’s grant of
summary judgment. There, the plaintiff was struck while negotiating a left-
hand turn in front of another driver. (Compton, supra, 12 Cal.App.4th at
p. 594.) The plaintiff alleged the intersection constituted a dangerous
condition of public property because “the bridge’s ‘cresting’ and a horizontal
curve created a sight restriction for which no adequate warning was
provided.” (Id. at pp. 594-595.)
Among other things, the plaintiff argued the city was liable despite
design immunity because the sight restrictions created a dangerous hidden
condition, and so section 830.8 controlled. (Compton, supra, 12 Cal.App.4th
at p. 600.) We disagreed: “While section 830.8 states that immunity for
failure to provide warning signs does not apply where there is a dangerous
hidden condition, it in no way purports to create an exception to the design
immunity under section 830.6. It would be illogical to hold that a public
entity immune from liability because the design was deemed reasonably
adoptable, could then be held liable for failing to warn that the design was
dangerous. [Citation.]” (Id. at p. 600.)
Similarly, in Weinstein v. California Department of Transportation
(2006) 139 Cal.App.4th 52, the Sixth Appellate District Court of Appeal
15
concluded a public entity could not be liable under section 830.8 for an injury
caused by the failure to provide warning signs when the public entity was
immune from liability for that condition under section 830.6. The court
recognized that there was design immunity for each of the features that the
plaintiff had identified as dangerous. And, “[s]ince defendant could not be
held liable for these aspects of the roadway’s design as dangerous conditions,
it could not be held liable for failing to warn of these same aspects.”
(Weinstein, at p. 61.) That court distinguished itself from Cameron, noting
that “Cameron involved the failure to warn of a hidden dangerous condition
that was not part of the approved design of the highway,” whereas “[h]ere,
plaintiffs claim that defendant was obligated to warn of conditions that were
part of the approved design.” (Ibid.)
Most recently, this question was considered in Tansavatdi v. City of
Rancho Palos Verdes (2021) 60 Cal.App.5th 423, review granted April 21,
2021, S267453 (Tansavatdi). There, a bicyclist traveling along a stretch of
road without a dedicated bike lane planned to ride straight through an
intersection from the far right side of the lane when a truck turning right at
the intersection struck the biker. (Id. at p. 428.) The city asserted that
design immunity shielded its decision to exclude a bike lane at that location.
(Id. at pp. 431-432.) The plaintiff argued the city had liability under a
separate failure to warn theory, unrelated to the design. (Ibid.)
The court reasoned that Cameron does not “as a matter of law,
necessarily preclude [a public entity’s] liability under a theory of failure to
warn” even if the failure is to warn of “the same dangerous condition” for
which there is design immunity, so it remanded the matter for
reconsideration of the failure to warn theory. (Tansavatdi, supra, 60
Cal.App.5th at p. 442, review granted.) Thus, Tansavatdi concluded that if a
16
design creates a dangerous condition, the public entity is protected against
liability for creating the condition, but it is not protected from liability for
failing to warn of that same condition.
Tansavatdi stated that it was relying on Cameron as holding or
suggesting that section 830.8 provides a plaintiff with an independent basis
for a failure to warn claim. (Tansavatdi, supra, 60 Cal.App.5th at pp. 441-
442, review granted.) As we previously explained, we do not understand
Cameron as holding that the plaintiff had an independent basis of liability
under the hidden trap exception if, on remand, design immunity ultimately
applied to the superelevation of the curve. Accordingly, we decline to follow
Tansavatdi’s approach.
We also are not persuaded by Cooper’s argument that sections 830.6
and 830.8 conflict, and because section 830.8 is more narrowly drawn it must
take precedence. Section 830.8 specifies “nothing in this section exonerates”
a public entity for failing to warn of hidden traps. The provision for design
immunity is not in section 830.8; it is provided for in section 830.6. Thus, the
two statutory sections are not in conflict.
Design immunity exists “ ‘to prevent a jury from simply reweighing the
same factors considered by the governmental entity which approved the
design.’ [Citation.]” (Cameron, supra, 7 Cal.3d at p. 326.) “ ‘ “[To] permit
reexamination in tort litigation of particular discretionary decisions where
reasonable men may differ as to how the discretion should be exercised would
create too great a danger of impolitic interference with the freedom of
decision-making by those public officials in whom the function of making
such decisions has been vested.” ’ [Citation].” (Ibid.) We cannot separate the
failure-to-warn claim from the design immunity claim in this case because
17
the undisputed evidence indicates the decision not to warn was considered as
part of the design.
As we detailed ante, the County’s decision to leave the “Welcome to
Dehesa” sign and to permit left-hand turns westbound across Dehesa Road
onto private driveways was considered as part of the rumble strip
improvement project and was thus part of the design. Although Cooper
maintains that there remains a dispute over whether the welcome sign
affected the truck driver’s line of sight, this cannot be the basis for the
failure-to-warn claim because that allegedly dangerous condition is part of
the design itself. Because there is no evidence contradicting the County’s
assertion that it expressly planned the area without any warning signs, the
absence of such signs cannot be the basis of a cause of action here.7 As we
explained in Compton, “[i]t would be illogical to hold that a public entity
immune from liability because the design was deemed reasonably adoptable,
could then be held liable for failing to warn that the design was dangerous.
[Citation.]” (Compton, supra, 12 Cal.App.4th at p. 600.) Thus, Cooper’s claim
for liability based on these causes of injury are barred by design immunity.
7 We note that while design immunity does not continue in perpetuity
(Cornette, supra, 26 Cal.4th at p. 66 [describing the elements to demonstrate
loss of design immunity from changed conditions]; Baldwin, 6 Cal.3d at
p. 431 [discussing loss of design immunity outlined in section 830.6 from
change in circumstances]), Cooper did not argue that the County lost
immunity at some point after the rumble strip project was completed. Nor is
there any evidence in the record that indicates a change in conditions after
the rumble project in 2012.
18
2. Notice Requirements
Finally, even assuming there were a dangerous condition in this case,
because there is no dispute that the County lacked actual or constructive
knowledge, we would affirm the grant of summary judgment on that basis.
Where there is a dangerous condition and there is no immunity,
section 835 requires proof that either an employee negligently or wrongfully
created the dangerous condition within the scope of employment
(subdivision (a)) or that the public entity had actual or constructive notice of
the allegedly dangerous condition (subdivision (b)). Cooper argues notice was
not a necessary element because the County created the dangerous condition,
thereby meeting the requirements of section 835, subdivision (a). However,
because we have concluded the County was shielded from liability under
section 835, subdivision (a) because of design immunity, even if a failure-to-
warn claim were viable, Cooper would need to demonstrate notice under
section 835, subdivision (b).
In its motion for summary judgment, the County argued it did not have
actual or constructive notice of a dangerous condition. The County produced
evidence that an estimated 1,550 vehicles pass along the stretch of Dehesa
Road at issue in this case each day, and there had been no reported similar
collisions along the location of the collision between January 1, 2012 and
May 26, 2017. There also had been no reports or complaints about the
stretch of road, including no complaints about the welcome sign, the road
striping, the need for additional signs regarding speed or the curve, the need
to prohibit turns, sign distance between opposing drivers along the roadway,
or any unusual dangers involving left-hand turns. Cooper did not provide
evidence contradicting this claim or provide evidence to create a dispute of
this fact.
19
DISPOSITION
The judgment is affirmed. Parties to bear their own costs.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
20