Filed 7/19/22 Mendez v. City of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CARLOS FLORO TORRES MENDEZ, D079261
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2019-
00000377-CU-PO-NC)
COUNTY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert P. Dahlquist, Judge. Affirmed.
Gavrilov & Brooks, Sheila Wirkus Pendergast and Ognian Gavrilov for
Plaintiff and Appellant.
Office of County Counsel, Christopher J. Welsh and Sylvia S. Aceves,
Deputy Counsel for Defendant and Respondent.
Carlos Floro Torres Mendez appeals following a summary judgment in
his lawsuit against the County of San Diego (the County) arising from
injuries he suffered in a bicycle accident on a stretch of road that he contends
constituted a dangerous condition of public property. Specifically, Mendez
challenges the trial court’s ruling that the County established the affirmative
defense of design immunity pursuant to Government Code section 830.6.1
Mendez contends that the trial court erred in granting summary
judgment because a triable issue of fact exists on whether, during the
County’s 2014 review of possible safety modifications to Olive Hill Road, the
County considered and rejected the safety features that Mendez contends
should have been added to the road to alleviate the alleged dangerous
condition.
On our de novo review of the trial court’s summary judgment ruling, we
conclude that Mendez has not identified a triable issue of material fact. We
accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On December 13, 2017, at approximately 5:00 a.m., Mendez was riding
his bicycle on Olive Hill Road, which is a County-owned and maintained road
with one lane in each direction. A car driven by Dylan K. collided with
Mendez’s bicycle while both vehicles were traveling northbound on Olive Hill
Road, just prior to the intersection with Rancho Camino. In a deposition,
Dylan K. testified that immediately before the accident, his attention was
drawn to the left side of the road by a dog, and thus he did not see Mendez on
the right side of the road. On the stretch of Olive Hill Road where the
collision occurred, there is only a very narrow paved shoulder on the edge of
the northbound lane, but there is an approximate 10-foot wide paved
1 Unless otherwise indicated, all further statutory references are to the
Government Code.
2
shoulder on the edge of the southbound lane.2 The area is not lighted.
According to Mendez, as a result of the collision he suffered serious injuries,
including quadriplegia.
Mendez filed a lawsuit against the County and other parties. Against
the County, Mendez’s operative third amended complaint asserted a single
cause of action for dangerous condition of public property. (§ 835.) Mendez
alleged that the portion of Olive Hill Road where the accident occurred was
dangerous because “bicyclists in the northbound lane of traffic were funneled
into the same travel lane as motorists traveling at 50 mph with an obstructed
vision of bicyclists ahead of them. There was no signage warning of the
presence of bicyclists. The obstructed vision of motorists resulted in
inadequate time for motorists to perceive and react to the presence of
bicyclists to avoid collision with them.” Further, according to Mendez, the
road had “inadequate lighting” and “[t]he northbound side had no right
shoulder.” Summarizing these allegations, Mendez alleged that “[t]he lack of
a northbound road shoulder, inadequate lighting, obstructed view and high-
speed limit created a ‘trap’ for all northbound traveling bicyclists as they
were at risk of impact from behind by a high-speed motorist.”3
2 According to the declaration of Mendez’s expert, the shoulder on the
northbound lane “is a variable 4 inch to 12-inch paved area in some areas and
a variable 2 feet to 6-inch paved area in other spots.”
3 Similarly, in responses to special interrogatories Mendez identified the
features of the roadway that he alleged created a dangerous condition:
“Defendant County of San Diego created a dangerous and defective condition,
whereby they maintained a roadway with a limited and obstructed view for
traffic due to poor lighting, poor road striping, their failure to provide
adequately distributed shoulders or a bicycle lane for bicyclists and without
signs posted to warn motorists of bicycles on the roadway. These conditions
3
The County filed an answer to the third amended complaint, which
included the affirmative defense of design immunity. (§ 830.6.) The County
then moved for summary judgment, or in the alternative, for summary
adjudication.
The County contended it was entitled to summary judgement because
(1) it had established the affirmative defense of design immunity; or, (2) in
the alternative, Mendez would be unable to prove one or more of the elements
of a claim for dangerous condition of public property.
In support of its motion, the County submitted declarations, including
one from a County traffic engineer, Karel Shaffer, who designed the plans for
a safety enhancement project on Olive Hill Road in 2014. As the evidence
established, the County Engineer and Road Commissioner reviewed and
recommended approval of Shaffer’s plans and the project. The project was
subsequently approved by the County’s board of supervisors, and the work
was completed.
As Shaffer explained in his declaration, the 2014 project involved
installing a rumble strip down the centerline of Olive Hill Road.4 In
designing the project, he also considered other possible changes or additions
to the road to enhance safety: “Before I drafted the project plans, I personally
went out to Olive Hill Road for the specific purpose of looking for traffic
led to inadequate stop [sight] distance for any motorist traveling northbound
on Olive Hill Road such that motorists upon seeing a bicyclist in the roadway
could not stop before running down and striking the bicyclist in the same
manner Plaintiff was run down and struck.”
4 As Shaffer described, “Rumble strips . . . cause noise and vibration
which alert drivers that they need to slow down or pay better attention and
steer back into their own lane.”
4
safety issues. I drove the length of Olive Hill Road looking for areas where
safety improvements might be warranted.” Shaffer specifically explained:
“In creating the design plans for the 2014 Centerline Rumble
Strip project, I was aware of the potential for changes and
additions to the section of Olive Hill Road where [Mendez’s] crash
happened. Exercising my engineering judgment, I rejected the
following additions or changes because I did not feel they were
warranted:
“a. Adding a bike lane: As of 2014-2017, this section of Olive Hill
Road was not even on the County’s list for future addition of a
bike lane. When I designed the Centerline Rumble Strip project,
I was aware that bicyclists used Olive Hill Road and would have
to ride in the same lanes that cars travelled in. This was
intended. In my judgment, adding a bike lane was not necessary.
The County used the ‘Bikeway Planning and Design’ section of
the California Highway Design Manual as the County’s bikeway
standard when creating bikeways. But since there is no
requirement to have bikeways on all County roads, and there was
not a bikeway on Olive Hill Road, the standards did not require
any additions to Olive Hill Road.
“b. Re-configuring the lanes approaching Rancho Camino to
provide more paved shoulder to the right of the northbound lane:
The wide section of paved roadway on the west side of Olive Hill
Road near the crash site was added to enhance access to a
housing development and does not extend very far to the north or
south. This resulted in a wide shoulder on the west side of the
road, and a narrow shoulder on the east side of the road for a
short distance. Restriping the lanes to shift them over where
there is wider pavement, and then shift them back a short
distance later where the wide pavement ends, was not a good
option in my opinion. It would create a meandering centerline
which I find is not ideal for motorists. In my judgment, the
centerline and lane striping was appropriate and did not need to
be altered;
“c. Re-configuring the lanes approaching Rancho Camino to
provide a wider northbound lane. Again, restriping the lanes to
shift them over where there is wider pavement, and then shift
5
them back a short distance later where the wide pavement ends,
was problematic for the reasons described in paragraph (b).
“d. Adding ‘Share the Road’ signs or other similar signs
regarding the use of the road by bicyclists: In my judgment, such
signs were not warranted on Olive Hill Road;
“e. Installation of overhead street lights: The County does not
typically provide overhead street lighting. I did not see any
unusual need to install street lighting on the section of Olive Hill
Road where the crash happened;
“f. Lowering the speed limit: During the design process I was
aware of the County’s process for gathering speed data and
posting speed limits, and I felt the posted speed limit was
appropriate on this section of Olive Hill Road;
“g. Increasing the available sight distance for northbound
vehicles approaching the crash area just before Rancho Camino:
In my judgment, the sight distance for northbound vehicles is
adequate for reasonable, attentive drivers and meets the
County’s operational sight distance standards which apply to
existing roads such as Olive Hill Road.
“7. In my opinion as a Civil Engineer and Traffic Engineer,
rejecting these potential changes while designing the Centerline
Rumble Strip project was reasonable.”
Further, in support of its summary judgment motion, the County
submitted a declaration from an expert who opined that in designing the
2014 rumble strip project it was reasonable for Shaffer to exercise his
engineering judgment to decide not to include (1) a bike lane; (2) a
reconfiguration of the lanes to include additional paved shoulder; (3) “Share
the Road” signs for the benefit of bicyclists; (4) overhead street lights; (5) an
increase in the available sight distance; and (6) a speed limit reduction.
In opposition, Mendez submitted a declaration from his own expert
opining on safety improvements that could have been made to Olive Hill
6
Road. “To a reasonable degree of probability and engineering certainty, the
subject location of Olive Hill Road in the vicinity of Rancho Camino Road
required additional signing such as BICYCLES SHARE THE ROAD to alert
motorists to their location along said stretch of roadway. The lanes could
have been reconfigured to create a wider shoulder for northbound bicyclists in
this short section. There was no shoulder really available for [Mendez] to
ride on and he was therefore funneled into the northbound lane with
motorists approaching from the rear.” The expert also noted that, in
discovery, the County had not produced any documents corroborating
Shaffer’s statement that “engineering consideration was actually given to the
addition of a bike lane, reconfiguration of the lanes at the collision site,
addition of ‘share the road’ type signage, installation of overhead streetlights,
reducing of the speed limit or increasing the available sight distance for
northbound motorists.”
In opposition to the summary judgment motion, Mendez also submitted
excerpts from Shaffer’s deposition. In one excerpt, Shaffer explained why he
did not make any safety modifications to address bicycle traffic, even though
the speed limit was 50 miles per hour and bicyclists were forced to share the
road with motor vehicles: “[T]here’s adequate sight distance; so vehicles can
slow down and share the road with bicyclists. And we’ve had no reported
7
incidents, other than the subject case here, where we had a bicycle incident
that I’m aware of.”5
The trial court granted the motion for summary judgment. As the basis
for its ruling, the trial court reached only the issue of design immunity and
did not consider whether there was also merit to the County’s contention that
Mendez would be unable to establish one or more of the elements of a claim
for dangerous condition of public property.
Mendez appeals from the judgment.
II.
DISCUSSION
Mendez contends that the trial court erred in granting summary
judgment because there was a triable issue of material fact on the County’s
affirmative defense of design immunity. We begin by reviewing the
applicable legal standards.
A. Applicable Legal Standards
“Under the Government Claims 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), quoting § 815, subd. (a).)
The cause of action at issue in this case—dangerous condition of public
property—is based on the liability created by section 835. That provision
states, “Except as provided by statute, a public entity is liable for injury
5 During his deposition, Shaffer also confirmed that he had considered
and rejected a modification of the centerline: “[T]his project was an
opportunity to possibly modify the location of the centerline, if deemed
necessary based on what I saw in the field and what I saw in our collision
histories. And at the time of my evaluation, I determined that placing the
centerline rumble strip on top of the existing centerline location was
adequate.”
8
caused by a dangerous condition of its property if the plaintiff establishes
that the property was in a dangerous condition at the time of the injury, that
the injury was proximately caused by the dangerous condition, that the
dangerous condition created a reasonably foreseeable risk of the kind of
injury which was incurred, and that either: [¶] (a) A negligent or wrongful
act or omission of an employee of the public entity within the scope of his
employment created the dangerous condition; or [¶] (b) The public entity had
actual or constructive notice of the dangerous condition under Section 835.2 a
sufficient time prior to the injury to have taken measures to protect against
the dangerous condition.” (§ 835.) “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, at p. 348.)
“If a dangerous condition is demonstrated, the public entity may still
prevail against a claim by means of an affirmative defense of immunity.”
(Hampton, supra, 62 Cal.4th at p. 348.) The type of immunity at issue here is
design immunity, set forth in section 830.6. In relevant part, section 830.6
provides, “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
9
other body or employee could have approved the plan or design or the
standards therefor.” (§ 830.6.)
The affirmative defense of design immunity is intended “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).) As
relevant here, a public entity is entitled to design immunity even when the
aspect of the design that causes the allegedly dangerous condition is an
intentional omission of a safety feature that the public entity considered but
reasonably rejected. (Sutton v. Golden Gate Bridge, Highway &
Transportation Dist. (1998) 68 Cal.App.4th 1149, 1159-1161 [public entity
was covered by design immunity based on a decision to omit a median barrier
on the Golden Gate Bridge].)
It is well established that to prevail on design immunity as an
affirmative defense, the public entity 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.”
(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 the facts are undisputed. . . . 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.” (Tansavatdi v. City of Rancho Palos
Verdes (2021) 60 Cal.App.5th 423, 434, review granted Apr. 21, 2021,
10
S267453 (Tansavatdi).)6 On the third element, “ ‘[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.’ ” (Menges v. Department of Transportation (2020) 59 Cal.App.5th
13, 21 (Menges).)
This appeal concerns an order granting summary judgment. “ ‘A trial
court properly grants a motion for summary judgment where “all the papers
submitted show that there is no triable issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” (Code Civ.
Proc., § 437c, subd. (c).)’ ” (Hampton, supra, 62 Cal.4th at p. 347.) “The
defendant has the initial burden on summary judgment to show that
undisputed facts establish an affirmative defense. [Citation.] Once the
defendant meets that burden, the burden shifts to the plaintiff to show a
triable issue of material fact regarding the defense.” (Filosa v. Alagappan
(2020) 59 Cal.App.5th 772, 778.) “ ‘ “ ‘ “We review the trial court’s decision de
novo, considering all the evidence set forth in the moving and opposing
papers except that to which objections were made and sustained.” ’
[Citation.] We liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.” ’ ” (Hampton, at p. 347.)
6 Further, because “[d]esign immunity does not necessarily continue in
perpetuity” (Cornette, supra, 26 Cal.4th at p. 66), section 830.6 specifies
“circumstances under which design immunity may be lost when the danger
arises out of a change in physical conditions of which the entity had notice
and as to which it had time to obtain funding for and perform remedial work
or provide appropriate warnings” (Hampton, supra, 62 Cal.4th at p. 348,
italics added). No change in physical conditions is claimed in this case.
11
Because the third element of an affirmative defense based on design
immunity requires the defendant to establish no more than substantial
evidence of a reasonable design, “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.” (Menges, supra, 59
Cal.App.5th at p. 21.) “ ‘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.’ . . . ‘That a
plaintiff’s expert may disagree does not create a triable issue of fact.’ ” (Id. at
p. 19, citations omitted.)
B. No Triable Issue of Material Fact Exists with Respect to Design
Immunity
Mendez contends that the portion of Olive Hill Road where the collision
occurred constituted a dangerous condition because of a confluence of several
factors: no paved shoulder or bike lane in the northbound direction; no
overhead lighting; a 50 mile per hour speed limit; and the lack of signs
informing motorists to “Share the Road” with bicyclists. The trial court ruled
that the County was entitled to design immunity because the undisputed
evidence showed that Shaffer had considered each of those features during
his design of the 2014 rumble strip project and decided not to implement any
changes to address them. Further, Shaffer’s design was approved by the
County Engineer and Road Commissioner; the Board of Supervisors approved
the project; and the County’s expert witnesses opined that the design was
reasonable.
As we have explained, the County is entitled to design immunity if it
can establish three elements: “(1) a causal relationship between the plan or
12
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.)
Mendez focuses on an argument that applies to both the first and
second elements.7 Specifically, Mendez contends that the evidence submitted
in connection with the summary judgment motion supports a reasonable
inference that, contrary to Shaffer’s statements in his declaration, Shaffer did
not consider and reject the safety features that Mendez contends should have
been added to Olive Hill Road to make it safer for bicyclists. Mendez
contends that “the plan for the centerline Rumble Strip did not show the
consideration of lights, signs, speed limit, a bike lane, or anything else.
Because those features are absent from the plan, the most reasonable
inference is that those features were not considered.” Mendez further points
out that although Shaffer stated that he did consider all of those features,
Shaffer did not give any details about why he rejected certain of them,
namely, the warning signs, the street lighting, and the lowered speed limit. 8
According to Mendez, because Shaffer gave only “bare statements he did not
think they were warranted or appropriate,” a reasonable inference arises that
Shaffer did not actually consider those features. Mendez summarizes his
argument: “Although the trial court has discretion to accept an engineer’s
7 Mendez does not challenge the trial court’s ruling as to the third
element, observing that “[b]ecause the third element requires only
substantial evidence of reasonableness, a public entity’s evidence of the third
element is virtually unassailable.” Here, the expert declaration submitted by
the County satisfied the third element.
8 Mendez recognizes that Shaffer did provide details as to why he
rejected the idea of installing a bike lane or reconfiguring the lanes to provide
a wider paved shoulder for the northbound lane.
13
declaration about his state of mind and engineering judgment to exclude
certain features, it was an abuse of discretion for the court to do so here,
because the statements in his declaration were contradicted by reasonable
inferences to the contrary. The reasonable inferences to draw from the
design selected, its safety purpose, the plan itself, and the declaration
offering engineering explanations for the decision not to have a meandering
centerline while offering no explanation for the alleged decision to reject
other safety features, are that the County engineer did not actually consider
the risks to northbound bicyclists and did not actually consider whether
certain features would have made that portion of Olive Hill Road safer for
northbound bicyclists.”
Mendez explains that if a triable issue of fact exists as to whether
Shaffer actually considered and rejected the safety features identified in his
declaration, then a triable issue of fact exists as to whether the County will
be able to establish the first two elements of design immunity. As Mendez
properly points out, if Shaffer’s 2014 design did not consider the safety
features that Mendez claims are needed for the safety of bicyclists, then there
is no causal relationship between that 2014 design and the bicycle accident.
The County therefore would not be able to establish the first element, namely
“(1) a causal relationship between the plan or design and the accident.”9
(Cornette, supra, 26 Cal.4th at p. 69, italics added.) As to the second element,
if Shaffer’s 2014 design did not consider the safety features that Mendez
claims are needed for the safety of bicyclists, then the County would not be
9 “Causal relationship is proved by evidence the injury-producing feature
was actually a part of the plan approved by the governmental entity: Design
immunity is intended to immunize only those design choices which have been
made.” (Higgins v. State of California (1997) 54 Cal.App.4th 177, 185, italics
added.)
14
able to show “discretionary approval” of any plan or design that would confer
design immunity. (Id. at p. 69.)
We reject Mendez’s argument. Shaffer’s declaration plainly states that
he considered and rejected all of the features that Mendez contends are
necessary to make Olive Hill Road safe for bicyclists. Although Mendez
contends that Shaffer was not truthful in making those statements, Mendez
has failed to identify any evidence that contradicts Shaffer’s statements.
“ ‘When opposition to a motion for summary judgment is based on inferences,
those inferences must be reasonably deducible from the evidence, and not
such as are derived from speculation, conjecture, imagination, or
guesswork.’ ” (Waschek v. Department of Motor Vehicles (1997) 59
Cal.App.4th 640, 647.) Here, because Mendez has submitted no contradictory
evidence, nothing more than speculation and guesswork supports Mendez’s
contention Shaffer did not actually consider the items described in his
declaration. Instead, as we understand Mendez’s argument, he believes that
summary judgment should have been denied because, at trial, a jury might
decide to discredit Shaffer’s testimony and disbelieve Shaffer’s express
statement that he performed an engineering evaluation in which he rejected
the safety features that Mendez contends are necessary.
This argument fails because “the law is clear that summary judgment
may not be denied solely on the basis of the credibility of the moving party’s
witnesses.” (Ayon v. Esquire Deposition Solutions, LLC (2018) 27
Cal.App.5th 487, 496.) Specifically, Code of Civil Procedure section 437c,
subdivision (e), provides, “If a party is otherwise entitled to summary
judgment pursuant to this section, summary judgment shall not be denied on
grounds of credibility . . . , except that summary judgment may be denied in
the discretion of the court if the only proof of a material fact offered in
15
support of the summary judgment is an affidavit or declaration made by an
individual who was the sole witness to that fact; or if a material fact is an
individual’s state of mind, or lack thereof, and that fact is sought to be
established solely by the individual’s affirmation thereof.” (Italics added.)
Neither of the listed exceptions apply here. First, Shaffer’s description
of the safety features he considered and rejected describes the steps taken in
carrying out a professional engineering evaluation; it does not merely
describe “an individual’s state of mind.” (Code Civ. Proc., § 437c, subd. (e).)
Second, because Shaffer also gave deposition testimony about his engineering
evaluation, this is not a circumstance where “the only proof of a material fact
. . . is an affidavit or declaration” (Ibid.; see also Morales-Simental v.
Genentech, Inc. (2017) 16 Cal.App.5th 445, 460 [“Code of Civil Procedure
section 437c, subdivision (e) focuses on the inability to cross-examine a
witness who has not been deposed, but has submitted a declaration or
affidavit. Here, [the witnesses] both gave deposition testimony.”].)
Moreover, even if either of the exceptions were applicable, Code of Civil
Procedure section 437c, subdivision (e) gives the trial court discretion to
nevertheless grant summary judgment by crediting a declaration.
(Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 417
[“Although [Code of Civil Procedure] section 437c, subdivision (e) contains an
exception to that rule when the declarant is the sole witness to a fact or
testifies as to his or her state of mind, the trial court retains discretion to
grant the motion based on such declarations.”]; Violette v. Shoup (1993) 16
Cal.App.4th 611, 621 [“Although the summary judgment statute provides the
court is not bound to accept an undisputed declaration by an individual as to
his or her state of mind, such matter is committed to the discretion of the
trial court.”].) The trial court was well within its discretion to accept
16
Shaffer’s declaration as undisputed evidence that Shaffer considered and
rejected each of the safety features that Mendez contends is necessary to
make Olive Hill Road safe for cyclists.10
Mendez suggests that in deciding whether Shaffer’s declaration is
credible, we should look to case law describing the inquiry to be performed in
the context of a Batson-Wheeler motion, where the question is whether to
credit a prosecutor’s proffered race-neutral reason for exercising a
peremptory strike. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).) “The credibility of a prosecutor’s
stated reasons ‘can be measured by, among other factors . . . how reasonable,
or how improbable, the explanations are; and by whether the proffered
rationale has some basis in accepted trial strategy.’ ” (People v. Hamilton
(2009) 45 Cal.4th 863, 900.)11 We reject the argument because the
credibility issue in this case arises in a completely different context. As
applicable to a summary judgment motion, Code of Civil Procedure section
437c, subdivision (e) provides that, unless an exception applies, “[i]f a party is
10 In general, “[t]he trial court’s summary judgment ruling is subject to
independent review. . . . ‘The only exception to the independent review
standard applies when we review a trial court’s exercise of discretion as
allowed by Code of Civil Procedure section 437c, subdivision (e).’ ” (Fretland
v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1490, citation omitted.)
As we have explained, the trial court did not abuse its discretion in applying
Code of Civil Procedure section 437c, subdivision (e) to consider Shaffer’s
declaration. Even if we were deciding in the first instance whether to
consider Shaffer’s declaration, Mendez has not provided any persuasive
reason not to consider it.
11 Mendez refers to a specific analytical inquiry in a Batson-Wheeler
context that was described in a dissent by Justice Mosk in People v. Johnson
(1989) 47 Cal.3d 1194, 1292, which focused on unexplained disparate
treatment of minority and nonminority jurors.
17
otherwise entitled to summary judgment pursuant to this section, summary
judgment shall not be denied on grounds of credibility.” (Italics added.)
Here, unlike in a Batson-Wheeler context, because no exception to Code of
Civil Procedure section 437c, subdivision (e) is present, neither we nor the
trial court are charged with deciding whether to credit Shaffer’s statement
that he considered and rejected all of the safety features described in his
declaration.
C. Mendez’s Allegation That the Lack of Signage Constitutes a Failure to
Warn Did Not Preclude Summary Judgment Because Shaffer Expressly
Considered and Rejected the Installation of “Share the Road” Signs
As we have explained, one aspect of the dangerous condition of public
property alleged by Mendez is that the County failed to install signs warning
motorists to “Share the Road” with bicyclists.
Section 830.8 states that, in certain circumstances, a public entity may
be found liable for failing to install a sign warning of a dangerous condition.
“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.” (§ 830.8.) Our Supreme Court has recognized
that, under this provision, a public entity “may . . . be liable for failure to
warn of [a] dangerous condition where the failure to warn is negligent and is
18
an independent, separate, concurring cause of the accident.” (Cameron v.
State of California (1972) 7 Cal.3d 318, 329 (Cameron).)
The courts of appeal are divided on how to apply design immunity to a
failure to warn situation. (See Compton v. City of Santee (1993) 12
Cal.App.4th 591, 600; Weinstein v. Department of Transportation (2006) 139
Cal.App.4th 52, 61; Tansavatdi, supra, 60 Cal.App.5th at p. 428, review
granted.) Specifically, the disagreement is over whether a failure-to-warn
claim against a public entity is categorically precluded by design immunity
when the underlying dangerous condition that the public entity failed to
warn against is covered by design immunity. (Compton, at p. 600 [“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.”]; Weinstein, at p. 61 [following
Compton to hold that “[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.”]; Tansavatdi, at p. 428 [“even
where design immunity covers a dangerous condition, it does not
categorically preclude liability for failure to warn about that dangerous
condition”].) Tansavatdi relied on our Supreme Court’s opinion in Cameron,
supra, 7 Cal.3d 318, which it described as holding that “a public entity may
be held liable for failure to warn of a concealed dangerous condition even if
19
that dangerous condition was covered by design immunity.” (Tansavatdi, at
p. 441.)12
Our Supreme Court has granted review in Tansavatdi to resolve the
dispute: “The only issue to be briefed and argued is the following . . . : Can a
public entity be held liable under Government Code section 830.8 for failure
to warn of an allegedly dangerous design of public property that is subject to
Government Code section 830.6 design immunity?” (Tansavatdi v. City of
Rancho Palos Verdes, S267453, Supreme Ct. Mins., Apr. 28, 2021, p. 592.)
Although the dispute that our Supreme Court will resolve in
Tansavatdi is important, there is no need for us to state our position on it in
order to decide this appeal.13 There has never been any dispute in the case
law that when the public entity’s decision not to install warning signs was an
express part of the public entity’s design process, a failure to warn claim
unquestionably falls under the umbrella of design immunity. As Tansavatdi
explained, “Nothing in Cameron . . . suggests that design immunity cannot
shield a failure to warn that is itself caused by a qualifying design under
section 830.6. Indeed, as noted, the plaintiffs there alleged that the failure to
warn ‘was not the result of any design or plan which would confer immunity
12 Cameron held, “[W]e conclude that where the state is immune from
liability for injuries caused by a dangerous condition of its property because
the dangerous condition was created as a result of a plan or design which
conferred immunity under section 830.6, the state may nevertheless be liable
for failure to warn of this dangerous condition where the failure to warn is
negligent and is an independent, separate, concurring cause of the accident.”
(Cameron, supra, 7 Cal.3d at p. 329.)
13 The outcome of this appeal therefore does not depend on the issue on
which our Supreme Court granted review in Tansavatdi, supra, 60
Cal.App.5th 423.
20
under section 830.6 . . . .’ (Cameron, supra, 7 Cal.3d at p. 327.)” (Tansavatdi,
supra, 60 Cal.App.5th at p. 442, fn. 18, review granted, italics added.)
Here, because the undisputed evidence establishes that Shaffer
considered and rejected the installation of “Share the Road” signs as part of
his 2014 evaluation, the absence of the signs is itself part of the design
approved by the County. Mendez’s failure-to-warn claim is therefore
precluded by design immunity.14
14 Because we affirm the trial court’s summary judgment ruling on the
basis of design immunity, we need not, and do not, reach any of the other
grounds for summary judgment raised by the County.
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DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
O’ROURKE, Acting P. J.
DO, J.
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