Opinion
NOT TO BE PUBLISHED
Contra Costa County Super.Ct.Nos. C04-00937, C05-00344
Duffy, J.
This is a wrongful death case in which a governmental entity successfully raised a design immunity defense in summary judgment proceedings before the trial court. Plaintiff sued after her husband, Samuel Ragent (plaintiff’s decedent), was killed in a motor vehicle–bicycle collision on a street designed by defendant City of Walnut Creek (the City). The trial court granted the City’s summary judgment motion, ruling that the City had established as a matter of law that design immunity immunized it against liability.
Plaintiff is entitled to trial on one of the three legal criteria required to successfully invoke the design immunity defense: whether the city engineer approved the design at the location where the motorist struck and killed plaintiff’s decedent. Accordingly, we will reverse the judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On January 25, 2004, plaintiff’s decedent was riding his bicycle south on South Main Street within city limits. He traversed the intersection of Castle Hill Road, an intersection controlled by a traffic signal, and just south of that junction was struck from the rear by an automobile driven by Nathan Louis Gans, Jr., who was also proceeding south on South Main Street through the Castle Hill Road intersection.
Gans’s automobile was in the confines of the southbound lane when he struck and killed plaintiff’s decedent. Gans testified that the lane he was occupying “is squeezed down very tightly” and a car would occupy all of its width except for one foot on either side. Gans saw plaintiff’s decedent only a fraction of a second before impact, leaving Gans insufficient time to avoid colliding with him.
A claim by plaintiff against Gans was settled and his liability is not at issue in our consideration of this case.
Plaintiff brought a damages claim against the City under Government Code section 905. The city evidently rejected it, because on February 18, 2005, plaintiff sued for damages on a theory of wrongful death. She claimed that a dangerous condition of South Main Street proximately caused her husband’s death and that the City knew (actually or constructively) of the condition or should have known of it. The dangerous-condition claim rests wholly or in major part on a theory that the street on which plaintiff’s decedent died was unsafely narrow. He was struck and killed on a section of South Main Street whose southbound lane, measured from the curb to the boundary of a turn pocket for northbound traffic, was 11 feet wide. Plaintiff’s expert opined that the southbound lane had a usable width of eight feet seven inches, measured from the raised pavement markers dividing the southbound lane from the northbound left-turn pocket to the beginning of the southbound lane’s gutter section. The expert characterized the lane as “extremely narrow” and averred that he observed southbound vehicles cross over into the northbound left-turn pocket because of the southbound lane’s narrowness. The expert also declared that the gutter section was out sloped, of a different color and texture, and interrupted by a drainage grate that a cyclist could not safely traverse. The effect, to summarize plaintiff’s point of view, was to force plaintiff’s decedent to ride in a traffic lane that was too narrow to be safely shared by cyclists and motor vehicles.
All further statutory references are to the Government Code unless otherwise stated.
On November 18, 2005, the City filed a motion for summary judgment and summary adjudication of an affirmative defense on the ground that the law immunized the City from liability for any defective design of South Main Street. The city relied on section 830.6, which provides that a governmental entity or public employee is immune from an injury-causing design of public property if, as relevant here, an employee empowered to exercise discretionary authority to approve the design did so. We will review in detail the parties’ evidence regarding this issue in the discussion that follows.
On June 2, 2006, following a hearing on the motion, the trial court filed an order ruling in the City’s favor and granting its summary judgment motion. The court recited: “The tentative ruling denying the motion for summary judgment is set aside. After further consideration and review of all pleadings, admissible evidence, arguments and legal authorities, the Court is convinced that there are no triable issues of material fact as there was, in fact, discretionary approval by the City Engineer for the design before construction. In addition, the Defendant City has prevented evidence sufficient to satisfy the Court as a matter of law that the design approval was reasonable under the circumstances.” On June 28, 2006, the court filed its judgment in the City’s favor.
On October 12, 2006, this case was transferred from the First District Court of Appeal to the Sixth District Court of Appeal. (Cal. Rules of Court, former rule 47.1(a)(1)(C) [now rule 10.1000(a)(1)(C)].) At the time of his death, plaintiff’s decedent was employed by the First District Court of Appeal.
DISCUSSION
The parties do not dispute the scope of the design immunity conferred by section 830.6. They dispute whether the City established design immunity as a matter of law and was entitled to summary judgment.
I. Standards Applying to 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 fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) A summary judgment motion must demonstrate that “material facts” are undisputed. (Code Civ. Proc., § 437c, subd. (b)(1).)
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.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) A cause of action “has no merit” under Code of Civil Procedure section 437c, subdivision (o), “if either of the following exists: [¶] (1) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded [, or] [¶] (2) [a] defendant establishes an affirmative defense to that cause of action.” (Ibid.)
Thus, a defendant meets its burden on summary judgment when it shows either “that a cause of action has no merit . . . or that there is a complete defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) When the defendant’s motion is based on an affirmative defense, the defendant has the burden of showing “ ‘that undisputed facts support each element of the affirmative defense.’ ” (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289; see also Allyson v. Department of Transportation (1997) 53 Cal.App.4th 1304, 1317-1318 [immunity defense established in moving papers and admitted by plaintiff].)
The superior court’s “primary function [in evaluating a summary judgment motion] is to identify issues rather than to determine issues. [Citation.] . . . If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) Thus, once the court determines that triable issues of fact exist, the summary judgment motion must be denied. (See Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1448.) “There is to be no weighing of evidence.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 880.)
The question of design immunity under section 830.6 involving actions arising from a dangerous condition of public property is asserted by the public entity as an affirmative defense. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 69.)
Because summary judgment motions involve purely questions of law, we review the granting of summary judgment de novo. (Chavez v. Carpenter, supra, 91 Cal.App.4th at p. 1438.) We review the ruling of the trial court, not its rationale. (Travelers Casualty & Surety Co. v. Superior Court (1998) 63 Cal.App.4th 1440, 1450.)
In our independent review of the propriety of granting summary judgment, “we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [plaintiff’s] evidentiary submission while strictly scrutinizing defendant[’s] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor. [Citations.]” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)
II. Scope of the Design Immunity Defense
At common law the doctrine of sovereign immunity precluded a governmental entity from being sued without its consent. “Sovereign immunity began with the personal prerogatives of the King of England. In the feudal structure the lord of the manor was not subject to suit in his own courts. [Citation.] The king, the highest feudal lord, enjoyed the same protection: no court was above him.” (Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 214, fn. 1.)
In Muskopf, “the California Supreme Court . . . ‘discarded as mistaken and unjust’ the judicial doctrine of governmental immunity from tort liability. In response to this decision, the Legislature enacted a statute suspending the effect of the Supreme Court decision so as to give the Legislature, and the Law Revision Commission, time to revise the law of sovereign immunity. [Citation.] In January 1963, the Law Revision Commission issued its recommendations, which the Legislature relied on in large part in enacting the Tort Claims Act.” (Los Angeles Police Protective League v. City of Los Angeles (1994) 27 Cal.App.4th 168, 174, fn. omitted.)
The Legislature temporized. “Under the California Tort Claims Act (§ 810 et seq.), public employees are liable for their torts unless a statute provides otherwise. (§ 820, subd. (a).)” (Barner v. Leeds (2000) 24 Cal.4th 676, 682; accord, Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1238.) One such excepting statute is section 830.6, the reservation of governmental immunity for reasonable and discretionary designs that is before us. Section 830.6 provides an exception to the general rule, set forth in section 835, subdivision (b), that “a public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures.” (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 68, fn. omitted.) “[U]nder section 830.6, the public entity may escape such liability by raising the affirmative defense of ‘design immunity.’ ” (Id. at p. 69.) “[A] public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.” (Ibid.) The purpose of the statute “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.” (Ibid.)
Section 830.6 provides in pertinent 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.”
As alluded to, only the second of the three elements listed in Cornette is at issue here. Specifically, we must decide whether the City established that there was no triable issue of fact concerning whether the city engineer or another city employee authorized to exercise discretion to approve the design change approved it before the contractor striped the location on South Main Street where the motorist struck and killed plaintiff’s decedent. “[T]his question . . . requires a case-specific factual determination that must be left to the jury when there is conflicting evidence.” (Hernandez v. Department of Transportation (2003) 114 Cal.App.4th 376, 387-388.)
The City relies on Uyeno v. State of California (1991) 234 Cal.App.3d 1371, 1376, for the proposition that the trial court is to apply a substantial evidence standard in considering the question whether the public entity enjoyed design immunity. Uyeno referred to sufficient evidence, and a substantial evidence standard is cited in Alvarez v. State of California (1999) 79 Cal.App.4th 720, 727-728. In both cases, however, those standards are based on a premise that it is a question of law for the trial court whether the public entity enjoyed design immunity. (See id. at p. 728; Uyeno, supra, at p. 1376.) On that point, Alvarez and Uyeno were implicitly abrogated by Cornette v. Department of Transportation, supra, 26 Cal.4th 63. (See id. at pp. 74, fn. 3, 75.) In Hernandez v. Department of Transportation, supra, 114 Cal.App.4th 376, the court rejected the defendant’s view that “its only burden was to show substantial evidence there was discretionary approval of the . . . plans prior to construction.” (Id. at p. 383; see also id. at p. 385.) Following Cornette, Hernandez unquestionably states the proper standard with regard to the element at issue here: the determination whether a public entity exercised discretionary approval “must be left to the jury when there is conflicting evidence.” (Id. at p. 388.)
III. Discretionary Approval of the Design
On July 11, 1994, the Walnut Creek City Engineer, Francis Kennedy, exercising his discretion to do so, approved a resurfacing project for the portion of South Main Street where plaintiff’s decedent was killed. Kennedy’s approval did not alter the road’s lane configuration.
Soon afterward city officials took note of the project and thought it presented the opportunity to reconfigure the lanes by, as relevant here, installing the northbound left-turn pocket and narrowing the southbound lane. On August 17, 1994, five weeks after Kennedy approved the resurfacing project, a junior engineer, Andre Brodzik, proposed the lane-reconfiguration addition to the resurfacing project by drawing plans for it. Brodzik, however, had no discretionary authority to decide whether the lane reconfiguration should proceed.
On August 31, 1994, Greg Jacobs, an engineer who had contracted with the City to supervise the work, issued a “change notice” to the contractor directing that the reconfiguration be done.
The parties agree that no one signed any extant document approving the proposal for the August 17, 1994, lane reconfiguration. For example, Kennedy could have initialed an approval box on the plans illustrating the proposed lane reconfiguration change, but he testified in deposition, “unhappily, I didn’t do that.” The dispute in this case centers on whether Kennedy or anyone else who was authorized to exercise discretionary authority to approve this proposed design change did so despite the lack of documentation of any such approval, or, instead, the work proceeded despite the lack of authorized approval of it. If the reconfiguration was not approved by an official with the discretionary authority to do so, the City’s design immunity defense cannot prevail; if it was, the City’s defense does prevail, inasmuch as plaintiff does not contest the trial court’s ruling regarding the design’s reasonable nature; and if the parties’ evidence reveals a factual dispute whether it was properly approved, the question is reserved for the trier of fact at trial and may not be resolved on summary judgment.
Jacobs did not have the authority to review discretionarily the design of the 1994 lane reconfiguration at issue. But “a number of people,” according to Kennedy, including two city-employed engineers working under him, Alan Curtis and Gordon Sweeney, were authorized to approve changes such as the proposed lane reconfiguration. Kennedy could not recall whether either individual approved the change, and as discussed post, page 12, the plans show Brodzik’s initials as proposing the August 17, 1994, lane reconfiguration on an engineering drawing but a blank field in the adjoining box that an engineer would ordinarily initial to signify approval. The left side of the drawing contains another location at which approval could be indicated, and it, too, is blank.
A. The City’s Evidence
Because the City was the moving party on the summary judgment motion, we summarize its evidence first. The city contends that the following evidence, taken from the depositions of Kennedy and Jacobs and documents presented in conjunction with the summary judgment motion, shows that the trial court’s entry of judgment in its favor was sound:
Kennedy had the invariable custom and practice of approving all changes to city engineering projects, if not in writing, then orally. If the change involved a post-bid change in the scope of the work, a change in the quantity of materials for the project, or the work schedule, Kennedy would, after receiving information regarding the impact of “any change in schedule, price and quantities” from the contractor, prepare a “contract change order” on a form that bore a place for his authorizing signature. He alone was authorized to sign contract change orders. The lane reconfiguration at issue, however, did not implicate any of the three revision types that would require generation of a contract change order and accordingly resulted in issuing not a contract change order, but only a less significant “change notice,” which had no place for Kennedy’s signature. Kennedy was not required to sign or initial change notices. This change notice was prepared, pursuant to established practice, by Jacobs as the engineer monitoring the contractor’s performance of the work.
Kennedy did not recall approving the proposal to reconfigure the lanes at the accident location on South Main Street. But he always reviewed and approved proposed revisions. In Kennedy’s words, “I cannot sit here [in deposition] and say that I have distinct recollection of performing that act, but I can tell you with absolute[] certainty that that’s the process. [¶] . . . [¶] . . . That’s our custom and practice.” Kennedy could not think of a “single instance” during his career in which he had failed to review drawings proposing changes to previously ordered work. There was “no question” in his mind, based on custom and practice rather than personal recollection, that he must have reviewed the proposed reconfiguration of the South Main Street lanes. “Therefore,” the City argues, “the evidence in this case is undisputed that Kennedy orally approved the revised design plans as part of his custom and practice of doing so.”
In support of this argument, the City contends that Jacobs “testified that after the change notice was prepared, he presented it to the City Engineer [Kennedy] for approval before it went to the contractor.” Plaintiff asserts in her reply brief that in so contending “the City has misstated evidence,” and in fact “The question and answer did not refer to what happened with regard to the ‘Change Notice’ issued in this particular instance. So Jacobs too is testifying as to what is supposed to happen, not what necessarily happened here.”
B. Plaintiff’s Evidence
Plaintiff calls our attention to evidence that, if accepted by the trier of fact, would establish that discretionary approval was not obtained in this case.
As previously described, Kennedy testified that if a project change involved a post-bid change in the scope of the work, the quantity of materials for the project, or the work schedule, he would prepare a contract change order on a form that bore a place for his authorizing signature. Someone, perhaps Jacobs, had checked a box on the reconfiguration change notice form advising that “Changes affect quantities.” Under those circumstances a trier of fact could decide that a contract change order should have issued, for Kennedy stated at his deposition that he reviewed everything and would have seen that the reconfiguration would require a change in the quantity of materials needed to complete the project, which in turn would require him to prepare a contract change order. Yet the City did not produce evidence of a signed contract change order for the lane reconfiguration work.
Plaintiff’s evidence that the City’s employees failed to confer discretionary approval on the lane reconfiguration also includes the South Main Street engineering drawing, which, as previously described, was initialed by Brodzik as proposing the reconfiguration. On the adjoining box in which, according to Kennedy, he, Curtis, or Sweeney (see fn. 5, ante, p. 9) could have initialed their approval, there are no initials. Nor did any authorized official complete a box on the left side of the drawing on which he or she could have indicated approval. Kennedy testified that it was not his practice to initial the approval box, because “that was done by the supervisor of the work,” perhaps meaning Sweeney, “who was the senior engineer in charge of the capital program,” or perhaps “by the originator of the work, which in this case would have been Alan Curtis.” (The record also refers at one point to an “engineering supervisor” named Vic Steil.) On occasion, however, Kennedy would initial the approval box.
C. Triable Issues Exist Whether the Proposal Was Approved
The foregoing evidence shows that triable issues of fact exist whether the responsible city employees ever were given the lane reconfiguration proposal to review and, if so, whether they exercised their discretion to approve it. To be sure, “evidence of custom and practice in a business is admissible as circumstantial evidence of conduct on a particular occasion.” (Alvarez v. State of California, supra, 79 Cal.App.4th at p. 733.) But the City has not established that there is no triable issue of fact on the question whether its custom and practice was followed here—specifically, the state of the evidence shows a factual dispute on the question whether Kennedy, Curtis, Sweeney, or anyone else empowered to approve Brodzik’s proposal did so. At most, Kennedy’s testimony establishes that he must have done so if standard procedure was followed. The revision called for a change in quantities of materials, and any such change was supposed to generate a contract change order, but the City has produced none. We note from our own review of the record that a change as minor as painting 777 feet of red curb to accompany one of the multiple street renovation projects the City carried out in 1994 generated a contract change order. Finally, the drawing reflecting the change Brodzik was proposing bore no indication signifying anyone’s approval. Kennedy testified that it was not an “ironclad” policy that someone would initial the drawing’s approval box, but that testimony is just evidence favoring the City, not evidence that forecloses a factual dispute.
The City relies on Bane v. State of California (1989) 208 Cal.App.3d 860, implicitly abrogated on another ground by Cornette v. Department of Transportation, supra, 26 Cal.4th at page 74, footnote 3 (see also id. at p. 75), and overruled on another ground in Alvarez v. State of California, supra, 79 Cal.App.4th at pages 736-737. The facts of Bane are, however, different in material respects from the facts of this case. In Bane, plaintiff sued after his decedent died in a car accident following road modifications in 1984 at the intersection of two state highways. (Bane, at pp. 864, 866.) In Bane as here, no publicly employed engineer empowered to sign the plans for the change to the intersection did so. (Ibid.) But unlike this case, in Bane the engineer authorized to make discretionary decisions “testified he personally approved as reasonable the . . . plans in advance of construction.” (Id. at p. 868.) We have no reason to disagree with Bane’s conclusion that “if the public entity can prove the requisite approval with oral testimony . . . the approval element of design immunity is met.” (Id. at p. 869.) Kennedy’s oral testimony, however, did not establish that he approved the South Main Street design change at issue here. A triable question of fact exists in this case concerning whether anyone even presented Brodzik’s proposed design change to Kennedy or anyone else who could exercise discretionary authority, let alone whether any of those officials approved the change.
Bane noted that “the [design immunity] defense does not immunize decisions which have not been made.” (Bane v. State of California, supra, 208 Cal.App.3d at p. 868.) Hernandez v. Department of Transportation, supra, 114 Cal.App.4th 376, expressed the same view: “An actual informed exercise of discretion is required. The [design immunity] defense does not exist to immunize decisions that have not been made.” (Id. at pp. 385-386.) And that is the crucial question in this case—i.e., did any city employee having the discretionary authority to approve plan changes exercise that discretion and approve the reconfiguration of the lanes on the portion of South Main Street on which plaintiff’s decedent was killed? A triable question of fact exists regarding that question. As noted, because the City’s motion is based on an affirmative defense, the City has the burden of showing “ ‘that undisputed facts support each element of the affirmative defense.’ ” (Anderson v. Metalclad Insulation Corp., supra, 72 Cal.App.4th at p. 289, italics deleted.) Plaintiff having shown to the contrary, i.e., having produced evidence that raises a triable question of fact regarding the discretionary approval element of the affirmative defense, the City’s summary judgment motion was erroneously granted. (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1522 [“A defendant moving for summary judgment must show that the plaintiff . . . cannot refute an affirmative defense established by the defendant.”].) At trial, the parties may present their evidence. We venture no opinion on the substantive merits of either side’s case.
DISPOSITION
The judgment is reversed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Mihara, J.
We could not locate the claim form in the record, just plaintiff’s allegation in her complaint that she presented it and the City’s sixteenth affirmative defense, which pleaded that plaintiff’s suit was barred “to the extent” that she had failed to comply with the requirements under section 905 for bringing a claim.
Plaintiff is correct that Jacobs did not testify that he presented this change notice to Kennedy for approval and received his approval. Jacobs testified only that it was normal procedure to do so. Reading the City’s brief carefully, however, we see no attempt to mislead. Although the City’s argument is confusingly worded, it can be interpreted as stating no more than plaintiff does: that Jacobs was describing normal practice, not necessarily the events that occurred with regard to the proposal to reconfigure the lanes on South Main Street.